Certain Covenants of the Company. The Company covenants with the Underwriter as follows: (a) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. (b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object. (c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request. (d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request. (e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements. (f) The Company will use its best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not 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 Securities have been qualified as above provided. (g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date. (h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.” (i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective. (j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request. (k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable. (l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market. (m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter. (n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted. (o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities. (p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus. (q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Crescent Financial Corp), Underwriting Agreement (Crescent Financial Corp)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representative promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representative, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Class B Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Class B Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Company) to which Class B Certificates may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Class B Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Class B Certificates and their terms not otherwise specified in the preliminary prospectus or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Class B Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Class B Certificates are to be purchased by the Underwriters from the Class B Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representative and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActClass B Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Class B Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representative reasonably objects.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Class B Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Company) hereofto which Class B Certificates may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Class B Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may designate Representative reasonably designates and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Class B Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Class B Certificates have been sold by the Underwriters, then prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Class B Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentative, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Class B Certificates and related Series B Equipment Notes, a junior class of pass through certificates with respect to a previously issued series and related equipment notes or up to three classes of pass through certificates for a newly-issued series and related equipment notes) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned by the Company (or exercisable rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Class B Certificates, containing only information that describes the final terms of the Class B Certificates or the offering in a form consented to by the Representative and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectusoffering of the Class B Certificates.
Appears in 2 contracts
Samples: Underwriting Agreement (United Airlines, Inc.), Underwriting Agreement (United Airlines, Inc.)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representatives promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(g)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Certificates) not otherwise specified in the effective date of preliminary prospectus or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representatives and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time it is when delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) hereofto which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Certificates have been sold by the Underwriters, prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Certificates) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned by the Company (or exercisable rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Certificates, containing only information that describes the final terms of the Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectusoffering of the Certificates.
Appears in 2 contracts
Samples: Underwriting Agreement (United Airlines, Inc.), Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise MS promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, Time of Sale Prospectus or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without MS's consent, which consent will not be unreasonably withheld. If, at any amended Prospectus shall have been filed, (ii) time after the public offering of the receipt of any comments from Certificates, the Commission’s staff, Prospectus (iiior in lieu thereof the notice referred to in Rule 173(a) of any request under the Securities Act) is required by law to be delivered in connection with sales of the Commission’s staff Certificates by an Underwriter or a dealer, any event shall occur as a result of which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(g)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus that complies with the Securities Act and that sets forth the principal amount of the Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Certificates) not otherwise specified in the effective date of preliminary prospectus or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the principal amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Original Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which MS reasonably objects.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the 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 not misleadingtherein, in the light of the circumstances existing at the time it is when delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company's expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses you will furnish to the Company) hereofto which Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, such amendment either amendments or supplement supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as may so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be necessary to correct such untrue statement misleading in any material respect or omission so that the Time of Sale Prospectus, as so amended or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Prospectus Time of Sale Prospectus, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states jurisdictions in the United States as MS reasonably designates and other jurisdictions as the Underwriter may designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying filed with the provisions Commission; provided that providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Certificates have been sold by the Underwriters, prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period Between the date of five years after this Agreement and the Closing TimeDate, the Company will furnish shall not, without MS's prior written consent, offer, sell or enter into any agreement to sell (as public debt securities registered under the Underwriter copies Securities Act (other than the Certificates) or as debt securities which may be resold in a transaction exempt from the registration requirements of all annual reportsthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), quarterly reports and current reports filed any equipment notes, pass through certificates, equipment trust certificates or equipment purchase certificates secured by aircraft owned by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank (or the Company as the Underwriter may reasonably requestrights relating thereto).
(k) The Company will provide shall prepare a final term sheet relating to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by Certificates, containing only information that describes the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each final terms of the Company Certificates or the offering in a form consented to by MS and shall file such final term sheet within the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if period required by Rule 430A, a post-effective amendment to 433(d)(5)(ii) under the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to Securities Act following the issuance date the final terms have been established for the offering of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the SecuritiesCertificates.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants and agrees with the Underwriter you as follows:
(a) The Company will use deliver to you notice of its best efforts intention to cause prepare or file any amendment to the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or including any post-effective amendment to the Registration Statement, shall have become effective, amendment) or any amendment or supplement to the Prospectus which the Company proposes for use in connection with the offering of the Shares and which differs from the Prospectus on file with the Commission at the time of this Agreement, whether or any amended not such revised Prospectus shall have been filed, (iiis required to be filed pursuant to Rule 424(b) of the receipt of any comments from the Commission’s staff1933 Act Regulations, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance furnish you and your counsel with copies of any such stop order amendment or supplement a reasonable amount of any order preventing or suspending time prior to such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentuse.
(b) The Company will not at apply for listing and quotation of the Shares on the Nasdaq National Market System (the "NASDAQ NMS"), and will use its best efforts to obtain such listing. The Company will promptly notify you that the Common Stock has been approved for quotation and trading on the Nasdaq NMS, or of any time file or make any amendment determination by The Nasdaq Stock Market that the Common Stock fails to so qualify. In the event of a determination by The Nasdaq Stock Market that the Shares fail to qualify for listing and quotation on the Nasdaq NMS, all funds in the Escrow Account shall be returned to the Registration Statement or, if subscribers pursuant to the Company has elected to rely upon Rule 430A terms of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectEscrow Agreement.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, If any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Prospectus (as then amended or supplemented) in order to ensure that the Prospectus will does not include contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time under which they were made, not misleading, or it is delivered necessary to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements 1933 Act or any other law, the Company will forthwith prepare and furnish, at the Company's expense, to you, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that the Prospectus will comply with the 1933 Act or the 1933 Act Regulationssuch other law, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter case 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, however, that the Company shall not 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 Securities have been qualified as above providedbe.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The In further consideration of the agreements of the Initial Purchasers herein contained, the Company covenants with the Underwriter as follows:
(a) The Company will To use its best efforts to cause qualify the Registration Statement Senior Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate within six months after the date hereof and itself to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statementpay, or any post-effective amendment to reimburse the Initial Purchasers 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 Registration Statementeffective date hereof), provided, however, that the Company shall have become effective, 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 supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance other requirements deemed by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentbe unduly burdensome.
(b) The To pay all expenses, fees and taxes (other than transfer taxes on resales of the Senior Notes by the respective Initial Purchasers) in connection with the issuance and delivery of the Senior Notes, except that the Company will not at any time file or make any amendment shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (a) of this Section 4) of Hunton & Xxxxxxxx LLP, counsel to the Registration Statement orInitial Purchasers, if only in the Company has elected to rely upon Rule 430A of the 1933 Act Regulations events provided in paragraph (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectusc) of which this Section 4 and paragraphs (a) and (c) of Section 7, the Underwriter shall not previously have been advised Initial Purchasers hereby agreeing to pay such fees and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectdisbursements in any other event.
(c) The If the Initial Purchasers shall not take up and pay for the Senior Notes due to the failure of the Company has furnished 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 will 9 hereof, to pay the fees and disbursements of Hunton & Xxxxxxxx LLP, counsel to the Initial Purchasers, and, if the Initial Purchasers 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 Initial Purchasers 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.
(d) 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 Initial Purchasers 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 Senior Notes of the Company or any substantially similar securities of the Company without the consent of the Initial Purchasers.
(e) To prepare the Offering Memorandum in a form approved by you and to furnish to the Underwriter you, without charge, as many signed and conformed copies of the Registration Statement Offering Memorandum and any supplements and amendments thereto as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter you may reasonably request.
(df) The Company will deliver or cause At any time prior to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution initial resales of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required Senior Notes by the 1933 Act Initial Purchasers to be delivered in connection with sales of the Securitiespurchasers, if any event shall occur or condition exist have occurred as a result of which it is necessary, in the reasonable opinion of the Company or Hunton & Xxxxxxxx LLP, counsel for to the Underwriter or counsel for the CompanyInitial Purchasers, to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleadingtherein, in the light of the circumstances existing at when the time it Offering Memorandum is delivered to a purchaser, or if it shall be necessarynot misleading, in the reasonable opinion of either such counselforthwith to prepare and deliver, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereofits own expense, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or Offering Memorandum not misleading and to furnish the Prospectus comply Initial Purchasers with such requirements.
(f) The Company will use its best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws number of such states and other jurisdictions copies as the Underwriter Representatives 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, however, that the Company shall not 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 Securities have been qualified as above providedreasonably request.
(g) The Company will At any time prior to completion of the initial resales of the Senior Notes by the Initial Purchasers to purchasers, not to make generally availableany amendment or supplement to the Pricing Disclosure Package, the Offering Memorandum or Supplemental Written Offering Materials of which the Initial Purchasers shall not have previously been advised and furnished a copy.
(h) So long as the Senior Notes are outstanding and are “restricted securities” within the meaning of Rule 158 of 144(a)(3) under the 1933 Act Regulations (“Rule 158”)Act, to the furnish to holders of Senior Notes designated by such holders, upon request of such holders or such prospective purchasers, the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is information required by the 1933 Act to be delivered pursuant to Rule 144A(d)(4) under the Act, unless such information is contained, at the time of such request, in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 or 15(d) of the 1934 Securities Exchange Act subsequent to of 1934, as amended.
(i) Except following the time effectiveness of the Registration Statement becomes effective(as defined in the Registration Rights Agreement), (i) not to, and to ensure that any of its affiliates (as defined in Rule 501(b) of Regulation D under the Act) do not, directly or through any agent solicit any offer to buy or offer to sell the Senior Notes by means of any form of general solicitation or general advertising (as those terms are used in Rule 502(c) of Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Act and (ii) not to engage or permit its affiliates or any person acting on their behalf to engage, in any directed selling efforts (as defined in Regulation S) with respect to the Senior Notes sold pursuant to Regulation S and to comply and cause its affiliates and each person acting on their behalf to comply with the offering restrictions of Regulation S with respect to those Senior Notes sold pursuant thereto (it being understood that the Company and its affiliates shall not have responsibility for the actions of the Initial Purchasers or any of their respective affiliates).
(j) For To refrain, and cause its affiliates to refrain, from selling, offering for sale or soliciting offers to buy or otherwise negotiating in respect of any security (as defined in the Act) in a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company transaction that could be integrated with the Commission, such other documents, reports, proxy statements and information as shall be furnished by sale of the Company to its stockholders generally, and such other public information concerning Senior Notes in a manner that would require the Bank or registration under the Company as Act of the Underwriter may reasonably requestSenior Notes.
(k) The Company will provide During the period of one year after the Time of Purchase, to the holders not, and not permit any of their affiliates to, purchase, agree to purchase or otherwise acquire any of the Common Stock annual reports containing financial statements audited by Senior Notes which constitute “restricted securities” under Rule 144 under the Company’s independent auditors andAct unless, immediately upon written requestsuch purchase, the Company’s annual reports on Form 10-K , the parent or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment such affiliate submits such Senior Notes to the Registration Statement (including an amended Prospectus) containing all information so omittedTrustee for cancellation.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without your consent, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Certificates by an Underwriter or dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the basic prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter participating in the offering and the principal amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Original Trustees, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such state.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the Company filed with the Commission; PROVIDED THAT providing a website address at which such Annual Reports and any such definitive proxy statements and reports as may be required by the laws of each jurisdiction in which Securities have been qualified as above providedaccessed will satisfy this clause (f).
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement Except for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Continental Airlines Floating Enhanced Aircraft Trust Securities, prepare and distribute Series 2000, up to the Underwriter and counsel to the Underwriter a bound volume containing copies maximum principal amount of the documents used in connection with the issuance of the Securities.
(p) The Company will not$200,000,000, prior to the Option Closing Date or thirty (30) days after between the date of this AgreementAgreement and the Closing Date, whichever occurs firstthe Company shall not, incur any material liability or obligationwithout your prior written consent, direct or contingentoffer, sell, or enter into any material transaction, agreement to sell (as public debt securities registered under the Securities Act (other than the Certificates) or as debt securities which may be resold in a transaction exempt from the ordinary course registration requirements of businessthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or any transaction with a related party which is required to be disclosed in equipment purchase certificates secured by aircraft owned or leased by the Prospectus pursuant to Item 404 of Regulation S-K Company (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectusrights relating thereto).
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts For so long as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriteris not a “well-known seasoned issuer”, without chargeincluding as a result of being an “ineligible issuer”, from time to time until the effective date of the Registration Statement, each as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon defined in Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered 405 under the 1933 Act, such number of copies the Company shall not use in connection with the offering of the Offered Securities any Free Writing Prospectus that may only be used by an issuer that is not an “ineligible issuer” or any Free Writing Prospectus that may only be used by a “well-known seasoned issuer,” as applicable (as supplemented or amended) as the Underwriter may reasonably requestin each case, an “Impermissible Free Writing Prospectus”).
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(fd) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(ge) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(f) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(g) To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the authorization of the Offered Securities for listing on the listing exchange as specified in the applicable Final Term Sheet as soon as reasonably practicable.
(h) The If the Offered Securities include Debt Securities, the Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 4(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the holders Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectusv) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(oi) If the Offered Securities include Shares, the Company also covenants with you and each Underwriter as follows:
(i) The Company will not while the completion of the distribution of such Offered Securities is pending, file or make any amendment to the Registration Statement or the ADS Registration Statement, or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement and the ADS Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement or the ADS Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement and the ADS Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1934 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will promptly prepare and file with the Commission, subject to Section 4(h)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement, the ADS Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, at its expensewhile the completion of the distribution of any Offered Shares is pending, subsequent notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement or the ADS Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the ADS Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or the ADS Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(pv) The Company will not, prior comply with the Deposit Agreement so that ADRs evidencing any ADSs representing Offered Shares will be executed and delivered by the Depositary to the Option Underwriters at the applicable Closing Time or Date or thirty (30) days after of Delivery as the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectuscase may be.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts to cause the Registration Statement to become effective and will notify shall advise the Underwriter immediately, and confirm the notice in writing, (i) when promptly of any proposal to amend or supplement the Registration Statement, Time of Sale Prospectus or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or any amended Prospectus shall have been filed, supplement (iiexcept by documents filed under the Exchange Act) without the consent of the receipt of Underwriter, which consent will not be unreasonably withheld. If, at any comments from time after the Commission’s staff, (iii) of any request public offering of the Commission’s staff Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales of the Certificates by the Underwriter or a dealer, any event shall occur as a result of which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the Company) to which Certificates may have been sold by the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify the Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(i)) endeavor, in cooperation with the Underwriter, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as the Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver prepare a Prospectus that complies with the Securities Act and that sets forth the principal amount of the Certificates and their terms not otherwise specified in the preliminary prospectus or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus the Underwriter and the principal amount of the Certificates, the price at which the Certificates are to be purchased by the Underwriter from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to the best Underwriter a copy of its ability with each free writing prospectus relating to the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Underwriter reasonably objects.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the 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 not misleadingtherein, in the light of the circumstances existing at the time it is when delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company's expense, to Section 3(bthe Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the Company) hereofto which Certificates may have been sold by the Underwriter and to any other dealers upon request, such amendment either amendments or supplement supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as may so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be necessary to correct such untrue statement misleading in any material respect or omission so that the Time of Sale Prospectus, as so amended or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Prospectus Time of Sale Prospectus, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the Underwriter, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may designate reasonably designates and will endeavor to maintain such qualifications in effect so long as required for a period of not less than one year from the effective date distribution of the Registration StatementCertificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), promptly furnish to the holders Underwriter, upon request, copies of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying filed with the provisions Commission; provided that providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Certificates have been sold by the Underwriter, prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the Underwriter, any shares ofoffer, sell, or enter into any agreement to sell (as public debt securities convertible into or exercisable for shares of, Common Stock registered under the Securities Act (other than the Certificates) or as debt securities which may be resold in connection a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or equipment purchase certificates secured by aircraft spare parts owned by the Company (or rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Certificates, containing only information that describes the final terms of the Certificates or the offering in a form consented to by the Underwriter and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Certificates.
(l) It is contemplated that the Company shall use part of the funds raised hereby to redeem the Existing Notes. Prior to any such redemption, (i) the Company shall comply with all conditions precedent for redemption of the Existing Notes set forth in Article 4 of the Existing Indenture and any plan other applicable sections of the Existing Indenture, subject to the receipt of the proceeds from the sale of the Equipment Notes pursuant to the Note Purchase Agreement, or arrangement described (ii) the Company shall ensure that MBIA Insurance Corporation, as policy provider under the Existing Indenture, waives compliance with such conditions precedent set forth in Section 4.1 of the Existing Indenture and any other applicable sections of the Existing Indenture, in each case in accordance with the Existing Indenture; provided, however, that if the Existing Trustee accepts the redemption payment and releases the security interest on the Spare Parts Collateral (as defined in the ProspectusExisting Indenture) in accordance with the terms of the Existing Indenture and the Security Agreement (as defined in the Existing Indenture), the Company shall not be held liable for non-compliance with (i) or (ii) of this clause (l).
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts For so long as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriteris not a “well-known seasoned issuer”, without chargeincluding as a result of being an “ineligible issuer”, from time to time until the effective date of the Registration Statement, each as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon defined in Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered 405 under the 1933 Act, such number of copies the Company shall not use in connection with the offering of the Offered Securities any Free Writing Prospectus that may only be used by an issuer that is not an “ineligible issuer” or any Free Writing Prospectus that may only be used by a “well-known seasoned issuer,” as applicable (as supplemented or amended) as the Underwriter may reasonably requestin each case, an “Impermissible Free Writing Prospectus”).
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(fd) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(ge) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(f) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(g) To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the authorization of the Offered Securities for listing on the listing exchange specified in the applicable Final Term Sheet as soon as reasonably practicable.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 4(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Securities is pending, notify each of you promptly, and confirm the notice in writing, of (a) the effectiveness of any amendment to the holders Registration Statement, (b) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (c) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (d) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectuse) containing all information so omitted.
(o) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will, at its expense, subsequent will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without your consent, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Offered Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Offered Certificates by an Underwriter or dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Offered Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the basic prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter participating in the offering and the principal amount of the Offered Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Original Trustees, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Offered Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such state.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file such statements promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and reports as may be required by any definitive proxy statement of the laws of each jurisdiction in which Securities have been qualified as above providedCompany filed with the Commission.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this AgreementAgreement and the Closing Date, whichever occurs firstthe Company shall not, incur any material liability or obligationwithout your prior written consent, direct or contingentoffer, sell, or enter into any material transaction, agreement to sell (as public debt securities registered under the Securities Act (other than the Offered Certificates) or as debt securities which may be resold in a transaction exempt from the ordinary course registration requirements of businessthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or any transaction with a related party which is required to be disclosed in equipment purchase certificates secured by aircraft owned or leased by the Prospectus pursuant to Item 404 of Regulation S-K Company (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectusrights relating thereto).
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(ai) If reasonably requested by you in connection with the offering of the Debt Securities, the Company will prepare a preliminary prospectus supplement containing such information concerning the Debt Securities as you and the Company deem appropriate and (ii) promptly following the execution of each Terms Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the number or principal amount of Debt Securities covered thereby, the names of the Underwriters participating in the offering and the principal amount of Debt Securities which each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connection with the offering, the price at which the Debt Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information concerning the Debt Securities as you and the Company deem appropriate in connection with the offering of the Debt Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any preliminary prospectus supplement, the Prospectus and the Prospectus Supplement as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations (a "Rule 434 Prospectus") and will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the business day immediately succeeding the date of the applicable Terms Agreement.
(b) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter each of you immediately, and confirm the notice in writing, (i) when of the effectiveness of the Registration Statement, or Statement and any amendment thereto (including any post-effective amendment amendment), (ii) of the mailing or the delivery or EDGAX xxxnsmission to the Registration Statement, shall have become effective, or Commission for filing of any supplement to the Prospectus or any amended Prospectus shall have been fileddocument to be filed pursuant to the 1934 Act, (iiiii) of the receipt of any comments from the Commission’s staff, (iiiiv) of any request of by the Commission’s staff Commission for any amendment to amend the Registration Statement or amend any amendment or supplement to the Prospectus or for additional information information, and (ivv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening initiation of any proceedings for any of such purposesthat purpose. The Company will use make every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time give you notice of its intention to file or make prepare any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company willany filing under Rule 462(b)), at its expenseany Term Sheet or any amendment, subsequent supplement or revision to the issuance of the SecuritiesProspectus, prepare and distribute whether pursuant to the Underwriter 1934 Act, the 1933 Act or otherwise, and counsel to the Underwriter a bound volume containing will furnish you with copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date any such amendment or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.supplement
Appears in 1 contract
Certain Covenants of the Company. The Company covenants -------------------------------- with the each Underwriter as follows:
(a) The If requested by you in connection with the offering of the Offered Securities, the Company will use its best efforts prepare a preliminary prospectus supplement containing such information as you and the Company deem appropriate, and, immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the principal amount of the Offered Securities and their terms not otherwise specified in the Indenture, the name of each Underwriter participating in the offering and the principal amount of the Offered Securities that each severally has agreed to cause purchase, the Registration Statement name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Securities are to become effective be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and will notify the Underwriter immediatelyreallowance and any delayed delivery arrangements, and confirm such other information as you and the notice Company deem appropriate in writing, (i) when connection with the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort transmit copies of the Prospectus Supplement to prevent the issuance Commission for filing pursuant to and within the time period permitted by Rule 424 under the 1933 Act and will furnish to the Underwriters as many copies of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain preliminary prospectus supplement and the lifting thereof at the earliest possible momentProspectus as you shall reasonably request.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement and in the Prospectus. If, If at any time when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(fc) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing; and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use its best effortsefforts to prevent the issuance of any such stop order or of any order suspending such qualification and, in cooperation with the Underwriterif any such order is issued, to qualify obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many conformed copies of the Registration Statement (as originally filed) and of all amendments thereto, whether filed before or after the Registration Statement became effective, copies of all exhibits and documents filed therewith or incorporated by reference therein (through the end of the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities) and conformed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish to you, for each of the Underwriters, one conformed copy of the Registration Statement (as originally filed) and of each amendment thereto (including documents incorporated by reference into the Prospectus).
(g) The Company will arrange for the qualification of the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter you may designate and to will maintain such qualifications in effect for a period of not less than one year from so long as required for the effective date distribution of the Registration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 subjectOffered Securities. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Offered Securities have been qualified as above provided. Notwithstanding the preceding sentences, the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject or file a general consent to service of process in any jurisdiction.
(gh) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 45 days after the close of the period covered therebythereby (or 90 days, in the case of a period that is also the Company's fiscal year), an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regulations), covering (i) covering a period of at least 12 months beginning after the effective date of the Registration Statement and covering a period of 12 months beginning after the effective date of any post-effective amendment to the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such respective effective date.
dates and (hii) The Company will use a period of 12 months beginning after the net proceeds received by it from date of this Agreement but not later than the sale first day of the Securities in Company's fiscal quarter next following the manner specified in the Prospectus under the caption “Use date of Proceedsthis Agreement.”
(i) The CompanyIf and to the extent specified in Schedule II, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, Company will use its best efforts to cause a registration statement for the Common Stock Offered Securities to be effective duly authorized for listing on such exchange specified in Schedule II and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of registered under the 1934 Act subsequent to the time the Registration Statement becomes effectiveAct.
(j) For a period of five years after the Closing TimeDate, the Company will furnish to the Underwriter you and, upon request, to each Underwriter, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders or security holders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to Between the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written requestdate hereof and such date as may be specified in Schedule II, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, without your prior to the Option Closing Date consent, offer or thirty (30) days after the date of this Agreementsell, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transactionagreement to sell, or announce the offering of, any debt securities issued or guaranteed by the Company with maturities longer than one year (other than the Offered Securities). This limitation is not applicable to such offerings as may be specified in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the ProspectusSchedule II.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without your consent, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Offered Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Offered Certificates by an Underwriter or a dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Offered Certificates may have been sold by the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the basic prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the principal amount of the Offered Certificates that each severally has agreed to purchase, the price at which the Offered Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period of not less than one year from the effective date distribution of the Registration StatementOffered Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such state.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the Company filed with the Commission; PROVIDED that providing a website address at which such Annual Reports and any such definitive proxy statements and reports as may be required by the laws of each jurisdiction in which Securities have been qualified as above providedaccessed will satisfy this clause (f).
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this AgreementAgreement and the Closing Date, whichever occurs firstthe Company shall not, incur any material liability or obligationwithout your prior written consent, direct or contingentoffer, sell, or enter into any material transaction, agreement to sell (as public debt securities registered under the Securities Act (other than the Offered Certificates) or as debt securities which may be resold in a transaction exempt from the ordinary course registration requirements of businessthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or any transaction with a related party which is required to be disclosed in equipment purchase certificates secured by aircraft owned or leased by the Prospectus pursuant to Item 404 of Regulation S-K Company (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectusrights relating thereto).
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The In further consideration of the agreements of the Initial Purchasers herein contained, the Company covenants with the Underwriter as follows:
(a) The Company will To use its best efforts to cause qualify the Registration Statement Senior Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate within six months after the date hereof and itself to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statementpay, or any post-effective amendment to reimburse the Initial Purchasers 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 Registration Statementeffective date hereof), provided, however, that the Company shall have become effective, 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 supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance other requirements deemed by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentbe unduly burdensome.
(b) The To pay all expenses, fees and taxes (other than transfer taxes on resales of the Senior Notes by the respective Initial Purchasers) in connection with the issuance and delivery of the Senior Notes, except that the Company will not at any time file or make any amendment shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (a) of this Section 4) of Hunton Xxxxxxx Xxxxx LLP, counsel to the Registration Statement orInitial Purchasers, if only in the Company has elected to rely upon Rule 430A of the 1933 Act Regulations events provided in paragraph (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectusc) of which this Section 4 and paragraphs (a) and (c) of Section 7, the Underwriter shall not previously have been advised Initial Purchasers hereby agreeing to pay such fees and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectdisbursements in any other event.
(c) The If the Initial Purchasers shall not take up and pay for the Senior Notes due to the failure of the Company has furnished 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 will 9 hereof, to pay the fees and disbursements of Hunton Xxxxxxx Xxxxx LLP, counsel to the Initial Purchasers, and, if the Initial Purchasers 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 Initial Purchasers 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.
(d) 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 Initial Purchasers 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 Senior Notes of the Company or any substantially similar securities of the Company without the consent of the Initial Purchasers.
(e) To prepare the Offering Memorandum in a form approved by you and to furnish to the Underwriter you, without charge, as many signed and conformed copies of the Registration Statement Offering Memorandum and any supplements and amendments thereto as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter you may reasonably request.
(df) The Company will deliver or cause At any time prior to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution initial resales of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required Senior Notes by the 1933 Act Initial Purchasers to be delivered in connection with sales of the Securitiespurchasers, if any event shall occur or condition exist have occurred as a result of which it is necessary, in the reasonable opinion of the Company or Hunton Xxxxxxx Xxxxx LLP, counsel for to the Underwriter or counsel for the CompanyInitial Purchasers, to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleadingtherein, in the light of the circumstances existing at when the time it Offering Memorandum is delivered to a purchaser, or if it shall be necessarynot misleading, in the reasonable opinion of either such counselforthwith to prepare and deliver, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereofits own expense, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or Offering Memorandum not misleading and to furnish the Prospectus comply Initial Purchasers with such requirements.
(f) The Company will use its best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws number of such states and other jurisdictions copies as the Underwriter Representatives 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, however, that the Company shall not 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 Securities have been qualified as above providedreasonably request.
(g) The Company will At any time prior to completion of the initial resales of the Senior Notes by the Initial Purchasers to purchasers, not to make generally availableany amendment or supplement to the Pricing Disclosure Package, the Offering Memorandum or Supplemental Written Offering Materials of which the Initial Purchasers shall not have previously been advised and furnished a copy.
(h) So long as the Senior Notes are outstanding and are “restricted securities” within the meaning of Rule 158 of 144(a)(3) under the 1933 Act Regulations (“Rule 158”)Act, to the furnish to holders of Senior Notes designated by such holders, upon request of such holders or such prospective purchasers, the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is information required by the 1933 Act to be delivered pursuant to Rule 144A(d)(4) under the Act, unless such information is contained, at the time of such request, in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 or 15(d) of the 1934 Securities Exchange Act subsequent to of 1934, as amended.
(i) Except following the time effectiveness of the Registration Statement becomes effective(as defined in the Registration Rights Agreement), (i) not to, and to ensure that any of its affiliates (as defined in Rule 501(b) of Regulation D under the Act) do not, directly or through any agent solicit any offer to buy or offer to sell the Senior Notes by means of any form of general solicitation or general advertising (as those terms are used in Rule 502(c) of Regulation D under the Act) or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Act and (ii) not to engage or permit its affiliates or any person acting on their behalf to engage, in any directed selling efforts (as defined in Regulation S) with respect to the Senior Notes sold pursuant to Regulation S and to comply and cause its affiliates and each person acting on their behalf to comply with the offering restrictions of Regulation S with respect to those Senior Notes sold pursuant thereto (it being understood that the Company and its affiliates shall not have responsibility for the actions of the Initial Purchasers or any of their respective affiliates.)
(j) For To refrain, and cause its affiliates to refrain, from selling, offering for sale or soliciting offers to buy or otherwise negotiating in respect of any security (as defined in the Act) in a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company transaction that could be integrated with the Commission, such other documents, reports, proxy statements and information as shall be furnished by sale of the Company to its stockholders generally, and such other public information concerning Senior Notes in a manner that would require the Bank or registration under the Company as Act of the Underwriter may reasonably requestSenior Notes.
(k) The Company will provide During the period of one year after the Time of Purchase, to the holders not, and not permit any of their affiliates to, purchase, agree to purchase or otherwise acquire any of the Common Stock annual reports containing financial statements audited by Senior Notes which constitute “restricted securities” under Rule 144 under the Company’s independent auditors andAct unless, immediately upon written requestsuch purchase, the Company’s annual reports on Form 10-K , the parent or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment such affiliate submits such Senior Notes to the Registration Statement (including an amended Prospectus) containing all information so omittedTrustee for cancellation.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Purchase Agreement (AEP Texas Inc.)
Certain Covenants of the Company. The So long as any Note remains outstanding, the Company covenants with the Underwriter agrees as follows:
(a) The Company will use its best efforts To elect to cause the Registration Statement to become effective and will notify the Underwriter immediatelybe treated, and confirm the notice in writingto maintain its status, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or as a regulated investment company for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such US federal income tax purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.;
(b) The To maintain its registration with the U.S. Securities and Exchange Commission (the Commission) as a closed-end management investment company (as defined under the Investment Company will not at any time file or make any amendment Act of 1940, as amended (the Investment Company Act)) and to observe its obligations and duties as a registered investment company under the Registration Statement or, if the Investment Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.Act
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.To comply with Applicable Law
(d) The Company will deliver To not voluntarily incur any indebtedness or cause to be delivered liabilities other than the following (the indebtedness and liabilities described in clauses (i) through (v), collectively, the Permitted Liabilities):
(i) indebtedness and liabilities pursuant to the UnderwriterNotes or the related Fiscal Agency Agreement
(ii) indebtedness and liabilities pursuant to any investment advisory agreement, without chargeadministration agreement, from time to time until custodial agreement, transfer agent agreement, placement agent agreement or otherwise incurred in connection with the effective date conduct of the Registration StatementCompanys business, as many copies including the management of each preliminary prospectus as assets in accordance with the Underwriter may reasonably request, Portfolio Guidelines
(iii) indebtedness and liabilities for expenses of formation and all other expenses and obligations incident to the operation or management of the Company
(iv) indebtedness and liabilities in respect of Company Taxes of the Company hereby consents to not yet due and payable or Company Taxes of the use Company due and payable that the Company is contesting in good faith and
(v) indebtedness and liabilities in respect of borrowed money provided that at no time will the outstanding principal amount of indebtedness or liabilities of the Company in respect of borrowed money (including in respect of the Notes) exceed 20% of the Net Asset Value at such copies time (it being understood for purposes permitted by the 1933 Act. The Company will deliver of this covenant that customary settlement obligations in respect of financial transactions shall not be considered indebtedness or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number liabilities in respect of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably requestborrowed money).
(e) The Company will comply To do all things necessary to the best of preserve and keep in full force and effect its ability with the 1933 Act existence, rights and the 1933 Act Regulationsfranchises, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. Ifincluding, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”all times:
(i) The Company, during the period when having a prospectus is required by the 1933 Act to be delivered in connection with sales board of Common Stock, will use directors
(ii) filing its best efforts to cause a registration statement for the Common Stock to be effective own Company Tax returns and will file promptly all documents paying any Company Taxes so required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
paid under Applicable Law (jiii) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material observing Delaware limited liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.company formalities
Appears in 1 contract
Samples: Fiscal Agency Agreement (Thirty Eight Hundred Fund LLC)
Certain Covenants of the Company. The Company -------------------------------- covenants with the each Underwriter as follows:
(a) The If reasonably requested by you in connection with the offering of the Offered Securities, the Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished prepare a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus supplement containing such informa- tion as the Underwriter may reasonably request, you and the Company hereby consents to deem appropriate, and, immedi- ately following the use execution of such copies for purposes permitted by the 1933 Act. The applicable Pricing Agreement, the Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the prepare a Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability Supplement that complies with the 1933 Act and the 1933 Act RegulationsRegulations and that sets forth the principal amount of the Offered Securities and their terms not otherwise specified in the Indenture, the name of each Underwriter participating in the offering and the principal amount of the Offered Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Under- writers in connection with the offering, the price at which the Offered Securities are to be purchased by the Under- writers from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the 1934 Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly trans- mit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the 1934 Act Regulations, so Underwriters as to permit many copies of any prelimi- nary prospectus supplement and the completion of the distribution of the Securities Prospectus as contemplated in this Agreement and in the Prospectus. If, you shall reasonably request.
(b) If at any time when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement State- ment or amend or supplement the Prospectus in order to comply com- ply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(d), such amendment or supplement as may be necessary to correct such untrue statement state- ment or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration State- ment, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing; and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for addi- tional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspen- sion of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many signed copies of the Registration Statement (as originally filed) and of all amendments thereto, whether filed before or after the Registration Statement became effective, copies of all exhibits and documents filed therewith or incorpo- rated by reference therein (through the end of the period when the Prospectus is required by the 1933 Act to be de- livered in connection with sales of the Offered Securities) and signed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish to you, for each of the Underwriters, one con- formed copy of the Registration Statement (as originally filed) and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 Statementhereof; provided, -------- however, that the Company shall not be obligated to file any ------- general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Offered Securities for investment under the laws of such jurisdictions as you may request.
(gh) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 45 days after the close of the period covered thereby, an earnings earning statement of the Company and its subsidiaries (in form complying with the provisions provi- sions of Rule 158158 of the 1933 Act Regulations), covering (i) covering a period of at least 12 months beginning after the effective date of the Registration Statement and covering a period of 12 months beginning after the effective date of any post- effective amendment to the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such respective effective date.
dates and (hii) The Company will use a period of 12 months beginning after the net proceeds received by it from date of this Agreement but not later than the sale first day of the Securities in Company's fiscal quarter next following the manner specified in the Prospectus under the caption “Use date of Proceedsthis Agreement.”
(i) The CompanyIf and to the extent specified in the applicable Pricing Agreement, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, Company will use its best efforts to cause a registration statement for the Common Stock Offered Securities to be effective duly authorized for listing on the New York Stock Exchange and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of registered under the 1934 Act subsequent to the time the Registration Statement becomes effectiveAct.
(j) For a period of five years after the Closing Time, the Company Com- pany will furnish to the Underwriter you and, upon request, to each Under- writer, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, l0-Q and 8-K, or such other similar forms as may be desig- nated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders or security holders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Between the date of the applicable Pricing Agreement and the Closing Time or such other date as may be specified in such Pricing Agreement, the Company will provide not, without your prior consent, offer or sell, or enter into any agreement to sell, any debt securities issued or guaranteed by the Company with a maturity of more than one year in any public offering (other than the Offered Securities and excluding the trans- actions contemplated by the Solicitation Agent Agreement, dated as of October 8, 1999, among Xxxxxxx Xxxxx, the Com- pany and PEI). This limitation is not applicable to the holders public offering of the Common Stock annual reports containing financial statements audited tax exempt securities guaranteed by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10Company or to such other public offering of long-K or Form 10-KSB, term debt as applicablemay be specified in Schedule II.
(l) The Company has complied and will file comply with Nasdaq all documents and notices required by Nasdaq the provi- sions of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (eachFlorida H.B. 1771, a “Blue Sky Survey”) for use in connection with the offering codified as Section 517.075 of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepareFlorida statutes, and file or transmit for filing with the Commission all regulations promulgated there- under relating to issuers doing business in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omittedCuba.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the principal amount of the Offered Securities and their material terms, the name of each Underwriter participating in the offering and the principal amount of the Offered Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will use its best efforts promptly transmit copies of the Prospectus Supplement to cause the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters as many copies of any preliminary prospectus supplement and the Prospectus as you shall reasonably request.
(b) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(c) hereof, file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(c) During the period when the Prospectus is required by the 1933 Act to become effective be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing; and will not file any such amendment, supplement or other document in a form to which you shall reasonably object.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify the Underwriter you immediately, and confirm the notice in writingwriting (with respect to clause (i), upon request), (i) when of the Registration Statement, or effectiveness of any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staffCommission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iii) of any request of by the Commission’s staff Commission to amend the Registration Statement or amend or any supplement to the Prospectus or for additional information relating thereto and (iv) of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or to the Company's knowledge, the threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(ce) The Company has furnished or will furnish to you for the Underwriter managing Underwriters as many signed and conformed copies as you have reasonably requested of each of the Registration Statement (as originally filed filed) and of each amendment all amendments thereto, whether filed before or after the Registration Statement becomes became effective, and as many copies of all exhibits and documents filed therewith and signed copies therewith, including documents incorporated by reference into the Prospectus pursuant to Item 12 of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by Form S-3 under the 1933 Act. The Company will deliver or cause to be delivered to Act (through the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during end of the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities) and copies of all consents and certificates of experts, as you may reasonably request. The Prospectus and any event shall occur amendments or condition exist as a result of which it is necessary, supplements thereto furnished to the Underwriters will be identical in all material respects to the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply electronically transmitted copies thereof filed with the requirements of Commission pursuant to XXXXX, except to the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.extent permitted by Regulation S-T.
(f) The Company will use its reasonable best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter you may designate designate, and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statementhereof; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Offered Securities for investment under the laws of such jurisdictions as you may reasonably request.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 45 days after the close of the period covered therebythereby (90 calendar days in the case the period corresponds to the fiscal year of the Company), an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regulations) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than and covering a period of
(h) The Company will comply to the first day best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations. If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Company’s fiscal quarter next following Offered Securities any event shall occur or condition exist as a result of which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary at any such effective datetime to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(c) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(hi) The Company will use the net proceeds received by it from the sale of the Offered Securities in the manner specified in the Prospectus under the caption “"Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective".
(j) For a period of five three years after the Closing Time, the Company will furnish to the Underwriter you copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders securityholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K not be or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) Ifbecome, at the any time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date expiration of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days three years after the Closing Time, without the prior written consent an open-end investment trust, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the UnderwriterInvestment Company Act of 1940, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in as amended (the Prospectus"Investment Company Act").
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(ai) The If reasonably requested by you in connection with the offering of the Offered Securities, the Company will use its best efforts to cause prepare a preliminary prospectus supplement containing such information concerning the Registration Statement to become effective Offered Securities as you and will notify the Underwriter immediately, Company deem appropriate and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) immediately following the execution of each Terms Agreement, the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the prepare a Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability Supplement that complies with the 1933 Act and the 1933 Act RegulationsRegulations and that sets forth the number or principal amount of Offered Securities covered thereby, the names of the Underwriters participating in the offering and the number or principal amount of Offered Securities which each Underwriter severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information concerning the 1934 Offered Securities as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the 1934 Act RegulationsUnderwriters named therein as many copies of any preliminary prospectus supplement, so the Prospectus and the Prospectus Supplement as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, you shall reasonably request.
(b) If at any time when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period between the date of the applicable Terms Agreement and the Closing Time, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, will furnish you with copies of any such amendment, supplement or other document and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many copies of the Registration Statement as originally filed and of all amendments thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the 0000 Xxx) and copies of all consents and certificates of experts as you may reasonably request, and has furnished or will furnish to you, for each other Underwriter, one copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities and, if applicable, Capital Securities into or for which the Subordinated Debt Securities are convertible or exchangeable and the Capital Securities, other preferred stock or Debt Securities into which the Preferred Shares are convertible or exchangeable, as the case may be, for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 StatementTerms Agreement applicable to such Offered Securities; providedPROVIDED, howeverHOWEVER, that the Company shall not 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 Offered Securities have been qualified as above provided.
(gh) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regulations) covering (i) a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such effective date.
date and (hii) The Company will use a period of 12 months beginning after the net proceeds received by it from the sale date of the Securities in applicable Terms Agreement but not later than the manner specified in first day of the Prospectus under Company's fiscal quarter next following the caption “Use date of Proceedsthe applicable Terms Agreement.”
(i) The CompanyIf and to the extent specified in the applicable Terms Agreement, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, Company will use its best efforts to cause a registration statement for effect the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 listing of the 1934 Act subsequent Offered Securities and, if applicable, the Capital Securities, other preferred stock or Debt Securities issuable upon conversion of or exchange for, as the case may be, Preferred Shares and/or Capital Securities issuable upon conversion of or exchange for Subordinated Debt Securities, on the New York Stock Exchange and the Boston Stock Exchange by the Closing Time with respect to the time the Registration Statement becomes effectiveapplicable Terms Agreement.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter you copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to Between the holders date of the Common Stock annual reports containing financial statements audited by applicable Terms Agreement and the Company’s independent auditors and, upon written requestClosing Time or such other date as is set forth in such Terms Agreement, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issuesale of, or otherwise dispose of, for a period of 180 days after the Closing Timesecurities set forth in such Terms Agreement, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than as set forth in connection with any plan or arrangement described in the Prospectussuch Terms Agreement.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without the consent of each Underwriter, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Offered Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Offered Certificates by an Underwriter or a dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at Embraer's expense, to the Underwriters and to the dealers (whose names and addresses the Underwriters will furnish to the Company) to which Offered Certificates may have been sold by the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the principal amount of the Offered Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period of not less than one year from the effective date distribution of the Registration StatementOffered Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such jurisdiction.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the Company filed with the Commission; PROVIDED THAT providing a website address at which such Annual Reports and any such definitive proxy statements and reports as may be required by the laws of each jurisdiction in which Securities have been qualified as above providedaccessed will satisfy this clause (f).
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterUnderwriters, offer, sell, or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Offered Certificates) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned or exercisable for shares of, Common Stock other than in connection with any plan leased by the Company (or arrangement described in the Prospectusrights relating thereto).
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representative promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representative, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Class B Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Class B Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Company) to which Class B Certificates may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Class B Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Class B Certificates and their terms not otherwise specified in the preliminary prospectus or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Class B Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as a representative of the Underwriters in connection with the offering, the price at which the Class B Certificates are to be purchased by the Underwriters from the Class B Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representative and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActClass B Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Class B Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representative reasonably objects.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Class B Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Company) hereofto which Class B Certificates may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Class B Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may designate Representative reasonably designates and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Class B Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Class B Certificates have been sold by the Underwriters, then prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Class B Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentative, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Class B Certificates and related Series B Equipment Note, or a junior class of pass through certificates with respect to a previously issued series and related equipment note) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft, spare engines or exercisable spare parts owned by the Company (or rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Class B Certificates, containing only information that describes the final terms of the Class B Certificates or the offering in a form consented to by the Representative and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement the offering of the Class B Certificates.
(l) The Company shall use the proceeds from the sale of the Series B Equipment Note as described under the heading “Use of Proceeds” in the Time of Sale Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without your consent, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Offered Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Offered Certificates by an Underwriter or a dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Offered Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement (except for documents filed under the Exchange Act by the Policy Provider), (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus (except for documents filed under the Exchange Act by the Policy Provider), (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the basic prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the principal amount of the Offered Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Original Trustees, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period of not less than one year from the effective date distribution of the Registration StatementOffered Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such state.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the Company filed with the Commission; PROVIDED THAT providing a website address at which such Annual Reports and any such definitive proxy statements and reports as may be required by the laws of each jurisdiction in which Securities have been qualified as above providedaccessed will satisfy this clause (f).
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in Agreement and the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the CommissionClosing Date, except as contemplated by the Prospectus.
(q) The Certificate Purchase Agreement, the Company will not sell shall not, without your prior written consent, offer, sell, or issue, contract enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Offered Certificates) or issue, or otherwise dispose of, for as debt securities which may be resold in a period of 180 days after transaction exempt from the Closing Time, without the prior written consent registration requirements of the UnderwriterSecurities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned or exercisable for shares of, Common Stock other than in connection with any plan leased by the Company (or arrangement described in the Prospectusrights relating thereto).
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representatives promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Certificates and their terms not otherwise specified in the preliminary prospectus or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as a representative of the Underwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representatives and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) hereofto which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Certificates have been sold by the Underwriters, then prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Certificates and related Equipment Notes (as defined in the Note Purchase Agreement) or a class of pass through certificates junior to the Certificates and related equipment notes) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or equipment purchase certificates secured by aircraft owned by the Company (or rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Certificates, containing only information that describes the final terms of the Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Certificates.
(l) If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with respect to the Class AA Certificates and Class A Certificates pursuant to any securities convertible into or exercisable for shares ofexception set forth in Section (d) of Rule 102, Common Stock other than in connection with any plan or arrangement described then promptly upon notice from GS (or, if later, at the time stated in the Prospectusnotice), the Company will, and shall use commercially reasonable efforts to cause each of its affiliates to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as interpreted by the SEC) did apply.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter you as follows:
(a) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, not at any time make any amendment or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus Offering Memorandum of which you shall not have previously been advised and furnished a copy or any amended Prospectus to which you or your counsel shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentreasonably object.
(b) The Company will not at any time file or make any amendment promptly deliver to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriteryou, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when from the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply date hereof to the best date of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities by you, such number of copies of the Offering Memorandum, as contemplated in this Agreement and in it may then be amended or supplemented, or the Prospectus. Preliminary Offering Memorandum, as it may then be amended or supplemented, as you may reasonably request.
(c) If, at any time when a prospectus is required by the 1933 Act prior to be delivered in connection with sales completion of the Securitiesdistribution of the Securities by you, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of your counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleadingtherein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessaryif, in the reasonable opinion of either such counselyour counsel or counsel for the Company, at any such time it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order Offering Memorandum to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company Company, at its own expense, will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to correct a purchaser, be misleading or so that such untrue statement Offering Memorandum as so amended or omission or to make the Registration Statement or the Prospectus supplemented will comply with applicable law, as the case may be, and furnish you such requirementsnumber of copies as you may reasonably request.
(fd) The Company will use its best effortsendeavor, in cooperation with the Underwriteryou, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one a year from the effective date of the Registration StatementOffering Memorandum; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdictions as you may request.
(e) Except following the effectiveness of the Registration Statement, neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of Regulation D) will solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising (within the meaning of Rule 502(C) of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the 1933 Act.
(f) Neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of the 1933 Xxx) xxll offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the 1933 Xxx) xxe offering of which security could be integrated with the sale of the Securities in a manner that would require the registration of any of the Securities under the 1933 Act.
(g) The Company will make generally availablenot be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under the 1940 Act, and will not be or become a closed-end investment company required to be registered, but not registered, thereunder.
(h) During the period from the Closing Time to the earlier of (i) two years after the Closing Time or (ii) the date of effectiveness of the Registration Statement, the Company will not, and will not permit any of its affiliates (as such term is defined in Rule 144 under the 1933 Xxx) xx, resell any of the Securities that have been reacquired thereby, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the 1933 Act.
(i) The Company will, so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 158 144(a)(3) under the 1933 Act, either (i) file reports and other information with the Commission under Section 13 or Section 15(d) of the 1933 Act Regulations 1934 Act, or (“Rule 158”)ii) in the event the Company is not subject to Section 13 or Section 15(d) of the 1934 Act, furnish to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale prospective purchasers of the Securities in designated by such holders, upon request of such holders or such prospective purchasers, the manner specified in the Prospectus information required to be delivered pursuant to Rule 144A(d)(4) under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered permit compliance with Rule 144A in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 resale of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) Securities. For a period of five years after the Closing Time, the Company will furnish make available to the Underwriter you upon request copies of all annual reports, quarterly such reports and current reports filed by the Company information, together with the Commission, such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generallythe holders of the Securities issued by it.
(j) If requested by you, and such other public information concerning the Bank or the Company as will use its best efforts in cooperation with you to permit the Underwriter may reasonably requestSecurities sold in transactions described in Section 2(d)(ii) hereof to be eligible for clearance and settlement through The Depository Trust Company.
(k) The Company Each Security will provide bear the following legend until such legend shall no longer be necessary or advisable because such Security is no longer subject to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors andrestrictions on transfer described therein: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, upon written requestAS AMENDED (THE "SECURITIES ACT"), the Company’s annual reports on Form 10OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-K or Form 10-KSBU.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, as applicable(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
(l) The Company will file apply the net proceeds that it receives from the offer and sale of the Securities issued by it in the manner set forth with Nasdaq all documents and notices required by Nasdaq respect to it in the Offering Memorandum under the heading "Use of companies that have issued securities that are quoted on the Nasdaq National MarketProceeds."
(m) The Company shall cause Except following the effectiveness of the Registration Statement, none of the Company, any affiliates (as such term is defined in Rule 501(b) of Regulation D) or any person acting on behalf thereof (other than you) will engage in any directed selling efforts (as such term is defined under Regulation S) in the United States with respect to be prepared by its counsel one or more “blue sky” surveys (eachthe Securities, a “Blue Sky Survey”) for use in connection and each of the Company, such affiliate and such other person acting on behalf thereof will comply with the offering restrictions requirement of Regulation S.
(n) Prior to the Closing Time, the Company will not issue any press release or other communications directly or indirectly or hold any press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Securities as contemplated by Company, without your prior consent, which shall not be unreasonably withheld, unless in the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each judgment of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepareits counsel, and file after notification to you, such press release or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if communication is required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omittedlaw.
(o) The Company will, at its expense, subsequent to For a period of 120 days from the issuance date of the SecuritiesOffering Memorandum, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, without your prior written consent, directly or indirectly, offer, sell, grant any option to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, purchase or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent any debt securities of the Underwriter, any shares of, Company (or any securities convertible or exchangeable into or exercisable for shares ofdebt securities of the Company), Common Stock other than in connection with any plan or arrangement described the Exchange Securities referred to in the ProspectusRegistration Rights Agreement.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without your consent, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Offered Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Offered Certificates by an Underwriter or dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Offered Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the basic prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter participating in the offering and the principal amount of the Offered Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Original Trustees, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states jurisdictions in the United States as CSFB reasonably designates and other jurisdictions as the Underwriter may designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Offered Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such state.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file such statements promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and reports as may be required by any definitive proxy statement of the laws of each jurisdiction in which Securities have been qualified as above providedCompany filed with the Commission.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this AgreementAgreement and the Closing Date, whichever occurs firstthe Company shall not, incur any material liability or obligationwithout your prior written consent, direct or contingentoffer, sell, or enter into any material transaction, agreement to sell (as public debt securities registered under the Securities Act (other than the Offered Certificates) or as debt securities which may be resold in a transaction exempt from the ordinary course registration requirements of businessthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or any transaction with a related party which is required to be disclosed in equipment purchase certificates secured by aircraft owned or leased by the Prospectus pursuant to Item 404 of Regulation S-K Company (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectusrights relating thereto).
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The If reasonably requested by you in connection with the offering of the Offered Securities, the Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished prepare a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus supplement containing such information as the Underwriter may reasonably request, you and the Company hereby consents to deem appropriate and, immediately following the use execution of such copies for purposes permitted by this Agreement, the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the prepare a Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability Supplement that complies with the 1933 Act and the 1933 Act RegulationsRegulations and that sets forth the principal amount of the Offered Securities and their terms not otherwise specified in the Indenture, the name of each Underwriter participating in the offering and the 1934 principal amount of the Offered Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance any delayed delivery arrangements and such other information as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the 1934 Act Regulations, so Underwriters as to permit many copies of any preliminary prospectus supplement and the completion of the distribution of the Securities Prospectus as contemplated in this Agreement and in the Prospectus. If, you shall reasonably request.
(b) If at any time when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(f), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(f), file promptly all documents required to be filed with the Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934 Act.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; and the Company will furnish you with copies of any such amendment, supplement or other document at a reasonable time in advance of filing, except any current report on Form 8-K filed with the Commission with respect to a press release issued by the Company that is not reasonably expected to have a material effect on the Company or the price of the Common Stock; provided, however, that the Company shall inform you of its intention to file documents pursuant to Section 14(d) of the 1934 Act and shall furnish you with copies of such documents immediately upon the filing thereof; and provided further that you or your counsel shall not be entitled to object thereto other than pursuant to Section 3(b).
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you one signed copy of the Registration Statement (as originally filed), of any Rule 462(b) Registration Statement, and of all amendments thereto, whether filed before or after the Registration Statement became effective, copies of all exhibits and documents filed therewith or incorporated by reference therein (through the end of the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities) and signed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish to you, for each of the Underwriters, ten conformed copies of the Registration Statement (as originally filed), of any Rule 462(b) Registration Statement and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 Statementhereof; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above providedpro vided. The Company will also supply you with such information as is necessary for the determination of the legality of the Offered Securities for investment under the laws of such jurisdictions as you may request.
(gh) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 45 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regulations), covering (i) covering a period of at least 12 months beginning after the effective date of the Registration Statement (or, if applicable, any Rule 462(b) Registration Statement) and covering a period of 12 months beginning after the effective date of any post-effective amendment to the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such respective effective date.
dates and (hii) The Company will use a period of 12 months beginning after the net proceeds received by it from date of this Agreement but not later than the sale first day of the Securities in Company's fiscal quarter next following the manner specified in the Prospectus under the caption “Use date of Proceedsthis Agreement.”
(i) The CompanyIf and to the extent specified in Schedule II hereto, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, Company will use its best efforts to cause a registration statement for the Common Stock Offered Securities to be effective duly authorized for listing on the New York Stock Exchange and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of registered under the 1934 Act subsequent to the time the Registration Statement becomes effectiveAct.
(j) For a period of five two years after the Closing Time, the Company will furnish to the Underwriter you and, upon request, to each Underwriter, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders or security holders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to Between the holders of date hereof and the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written requestClosing Time or such other date as may be specified in Schedule II, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, without your prior to the Option Closing Date consent, offer or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingentsell, or enter into any material transactionagreement to sell, any debt securities issued or guaranteed by the Company with a maturity of more than one year in any public offering (other than in the ordinary course Offered Securities). This limitation is not applicable to the public offering of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated tax exempt securities guaranteed by the ProspectusCompany or to such other public offering of long-term debt as may be specified in Schedule II.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without your consent, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Offered Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Offered Certificates by an Underwriter or dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Offered Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the basic prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter participating in the offering and the principal amount of the Offered Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Original Trustees, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states jurisdictions in the United States as Morgan Stanley reasonably designates and other jurisdictions as the Underwriter may designate and will endeavor to maintain such maxxxxxx xxxx qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Offered Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such state.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file such statements promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and reports as may be required by any definitive proxy statement of the laws of each jurisdiction in which Securities have been qualified as above providedCompany filed with the Commission.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this AgreementAgreement and the Closing Date, whichever occurs firstthe Company shall not, incur any material liability or obligationwithout your prior written consent, direct or contingentoffer, sell, or enter into any material transaction, agreement to sell (as public debt securities registered under the Securities Act (other than the Offered Certificates) or as debt securities which may be resold in a transaction exempt from the ordinary course registration requirements of businessthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or any transaction with a related party which is required to be disclosed in equipment purchase certificates secured by aircraft owned or leased by the Prospectus pursuant to Item 404 of Regulation S-K Company (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectusrights relating thereto).
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a preliminary prospectus supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort to prevent the issuance promptly transmit copies of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment Prospectus Supplement to the Registration Statement or, if the Company has elected Commission for filing pursuant to rely upon Rule 430A 424 of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter Underwriters named therein as many signed and conformed copies of the Registration Statement Prospectus and such Prospectus Supplement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may you shall reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(fb) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gc) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158158 of the 1933 Act Regulations).
(d) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(he) To the extent specified in the Terms Agreement, the Company will use its best efforts to (i) effect the authorization of the Offered Securities for listing on the New York Stock Exchange, Inc. at the applicable Closing Time or (ii) ensure that by the applicable Closing Time the Financial Services Authority, in its capacity as the United Kingdom Listing Authority (the "UKLA"), will have granted permission for the admission of the Offered Securities to the Official List subject to allotment and the London Stock Exchange plc will have granted permission for the admission of the Offered Securities to trading or (iii) effect the authorization of the Offered Securities for listing on the Luxembourg Stock Exchange, subject to their issuance.
(f) The Company will use shall, on or before the net proceeds received by it from the sale date of the publication of the listing particulars, if any, in relation to the Offered Securities, deliver a copy thereof to the Registrar of Companies in England and Wales in accordance with the applicable regulations, if so required by such applicable regulations.
(g) If the Offered Securities in include Debt Securities, the manner specified in the Prospectus under the caption “Use of Proceeds.”Company also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission thereunder, the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 4(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the holders Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectusv) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ov) In respect of a series of Debt Securities, which must be redeemed before the first anniversary of the date of its issue, the Company will issue such Debt Securities only if the following conditions apply (or the Debt Securities can otherwise be issued without contravention of section 19 of the FSMA): (a) each relevant Underwriter represents, warrants and agrees in the terms set out in Section 2(a); and (b) the redemption value of each such Debt Security is not less than (pound)100,000 (or an amount of equivalent value denominated wholly or partly in a currency other than sterling), and no part of any Debt Security may be delivered unless the redemption value of that part is not less than (pound)100,000 (or such an equivalent amount).
(h) If the Offered Securities include Shares, the Company also covenants with you and each Underwriter as follows:
(i) The Company will not while the completion of the distribution of such Offered Securities is pending, file or make any amendment to the Registration Statement or the ADS Registration Statement, or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement and the ADS Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement or the ADS Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement and the ADS Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission thereunder so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 4(h)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement, the ADS Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, at its expensewhile the completion of the distribution of any Offered Shares is pending, subsequent notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement or the ADS Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the ADS Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or the ADS Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(pv) The Company will not, prior comply with the Deposit Agreement so that ADRs evidencing any ADSs representing Offered Shares will be executed and delivered by the Depositary to the Option Underwriters at the applicable Closing Time or Date or thirty (30) days after of Delivery as the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectuscase may be.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without your consent, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Offered Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Offered Certificates by an Underwriter or dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Offered Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates Offered Certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the basic prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter participating in the offering and the principal amount of the Offered Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Original Trustees, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Offered Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such state.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the Company filed with the Commission; PROVIDED THAT providing a website address at which such Annual Reports and any such definitive proxy statements and reports as may be required by the laws of each jurisdiction in which Securities have been qualified as above providedaccessed will satisfy this clause (f).
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this AgreementAgreement and the Closing Date, whichever occurs firstthe Company shall not, incur any material liability or obligationwithout your prior written consent, direct or contingentoffer, sell, or enter into any material transaction, agreement to sell (as public debt securities registered under the Securities Act (other than the Offered Certificates) or as debt securities which may be resold in a transaction exempt from the ordinary course registration requirements of businessthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or any transaction with a related party which is required to be disclosed in equipment purchase certificates secured by aircraft owned or leased by the Prospectus pursuant to Item 404 of Regulation S-K Company (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectusrights relating thereto).
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The In further consideration of the agreements of the Initial Purchasers herein contained, the Company covenants with the Underwriter as follows:
(a) The Company will use its best efforts to cause To advise the Registration Statement to become effective and will notify Representatives promptly and, if requested by the Underwriter immediatelyRepresentatives, and confirm the notice such advice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness of the Registration Statement qualification or exemption from qualification of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities Restricted Shares for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 6(d) hereof, or of the institution or threatening initiation of any proceedings proceeding by any state securities commission or any other federal or state regulatory authority for any of such purposespurpose. The Company will shall use every reasonable effort its best efforts to prevent the issuance of any such stop order or order suspending the qualification or exemption of any order preventing Restricted Shares under any state securities or suspending such use blue sky laws and, if at any such time any state securities commission or other federal or state regulatory authority shall issue an order is issuedsuspending the qualification or exemption of any Restricted Shares under any state securities or blue sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting thereof of such order at the earliest possible momenttime.
(b) The Company will not at any time file or make any amendment To deliver to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the UnderwriterInitial Purchasers, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430Apracticable, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of many copies of the Prospectus Offering Memorandum (as supplemented or amendedamended if the Company shall have made any supplements or amendments thereto) as the Underwriter Initial Purchasers may reasonably request. Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 8 hereof, the Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(ec) The Company will comply For such period of time as the Initial Purchasers are required by law or customary practice to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion deliver an offering memorandum in respect of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. IfRestricted Shares, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, if any event shall occur or condition exist have occurred as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary Offering Memorandum in order to make the statements therein not misleadingtherein, in light of the circumstances existing at when the time it Offering Memorandum is delivered to a purchaseran Eligible Purchaser, not misleading, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time becomes necessary to amend the Registration Statement or amend or supplement the Prospectus in order Offering Memorandum to comply with the requirements of the 1933 Act or the 1933 Act Regulationslaw, the Company will promptly to forthwith prepare and file with the Commission, subject to Section 3(b) hereof, such an appropriate amendment or supplement to the Offering Memorandum and deliver to the Initial Purchasers, without charge, such number of copies thereof as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirementsreasonably requested.
(fd) The Company will To use its best efforts, in cooperation with the Underwriter, efforts to qualify the Securities Restricted Shares for offering offer and sale under the applicable securities or blue sky laws of such states and other jurisdictions as the Underwriter Initial Purchasers may designate and to maintain such qualifications pay (or cause to be paid), or reimburse (or cause to be reimbursed) the Initial Purchasers and their counsel for, reasonable filing fees and expenses in effect for a period connection therewith (including the reasonable fees and disbursements of not less than one year from counsel to the effective Initial Purchasers and filing fees and expenses paid and incurred prior to the date of the Registration Statement; hereof), provided, however, that the Company shall not be obligated required to qualify to do business as a foreign corporation or as a securities dealer or to file any a general consent to service of process or to qualify file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(e) So long as the Restricted Shares are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Restricted Shares a foreign corporation financial report of the Company on a consolidated basis, all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(f) So long as any of the Restricted Shares or as a dealer in securities in Issuable Common Stock are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and remain outstanding and during any jurisdiction period in which it the Company is not so qualified subject to Section 13 or 15(d) of the Exchange Act, to subject itself make available to taxation any holder of Restricted Shares in respect connection with any sale thereof and any prospective purchaser 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 Restricted Shares from such holder, the information required by Rule 144A(d)(4) under the laws of each jurisdiction in which Securities have been qualified as above providedAct.
(g) The Company will make generally availableTo pay all expenses, within fees and taxes (other than transfer taxes on sales by the meaning of Rule 158 respective Initial Purchasers) in connection with the issuance and delivery of the 1933 Act Regulations Restricted Shares and the Issuable Common Stock, except that the Company shall be required to pay the fees and disbursements (“Rule 158”other than disbursements referred to in Section 6(d) hereof) of PW, counsel to the Initial Purchasers, only in the events provided in Section 6(h) hereof, the Initial Purchasers hereby agreeing to pay such fees and disbursements in any other event, and that except as provided in such Section 6(h), to the holders Company shall not be responsible for any out-of-pocket expenses of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (Initial Purchasers in form complying connection with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective datetheir services hereunder.
(h) The Company will use If the net proceeds received by it from Initial Purchasers shall not take up and pay for the sale Restricted Shares due to the failure of the Securities in Company to comply with any of the manner conditions specified in Section 5 hereof, or, if this Agreement shall be terminated in accordance with the Prospectus under provisions of Section 12 hereof prior to the caption “Use Time of ProceedsPurchase or the Date of Delivery, as the case may be, to pay the reasonable fees and disbursements of PW, counsel to the Initial Purchasers, and, if the Initial Purchasers shall not take up and pay for the Restricted Shares due to the failure of the Company to comply with any of the conditions specified in Section 5 hereof, to reimburse the Initial Purchasers for their reasonable out-of-pocket expenses not to exceed $10,000 incurred in connection with the financing contemplated by this Agreement.”
(i) The Company, during During the period when referred to in Section 6(c) hereof, to not amend or supplement the Offering Memorandum unless the Company has furnished the Initial Purchasers and counsel to the Initial Purchasers with a prospectus is required by copy for their review and comment a reasonable time prior to the 1933 Act making of such amendment or supplement and has reasonably considered any comments of the Initial Purchasers, and not to be delivered make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in connection writing after consultation with sales the Initial Purchasers.
(j) During the period referred to in Section 6(c) hereof, to furnish the Initial Purchasers with copies of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 13, 14 or 15(d) of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably requestExchange Act.
(k) The Company will provide During the period referred to in Section 6(c) hereof, to comply with all requirements under the Exchange Act relating to the holders timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Common Stock annual reports containing financial Exchange Act and of its proxy statements audited by pursuant to Section 14 of the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicableExchange Act.
(l) The Company will file To comply in all material respects with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on its agreements set forth in the Nasdaq National MarketRegistration Rights Agreement.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) To obtain the approval of DTC for use in connection with the offering "book-entry" transfer of the Securities as contemplated by Restricted Shares, and to comply in all material respects with all of its agreements set forth in the Prospectus and a copy of each Blue Sky Survey representation letter or surveys shall be delivered to each letters of the Company and to DTC relating to the Underwriterapproval of the Restricted Shares by DTC for "book-entry" transfer.
(n) IfNot to (or permit any affiliate (as defined in Rule 144 under the Act) to) sell, at offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing Act) that would be integrated with the Commission in accordance with Rule 430A and Rule 424(b), copies sale of an amended Prospectus or, if required by Rule 430A, a post-effective amendment the Restricted Shares to the Registration Statement (including an amended Prospectus) containing all information so omittedInitial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Restricted Shares under the Act.
(o) The Company willNot to voluntarily claim, at its expenseand to actively resist any attempts to claim, subsequent to the issuance benefit of any usury laws against the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies holders of the documents used in connection with the issuance of the Securitiesany Restricted Shares.
(p) The Company will not, prior to During the Option Closing Date or thirty (30) days period of two years after the date Time of this AgreementPurchase, whichever occurs firstnot to, incur and not permit any material liability or obligationof its affiliates (as defined in Rule 144 under the Act) to, direct or contingent, or enter into resell any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated Restricted Shares which constitute "restricted securities" under Rule 144 under the Act that have been reacquired by the Prospectusany of them.
(q) To take all reasonable action necessary to enable S&P, Xxxxx'x and Fitch to provide their respective credit ratings of the Restricted Shares.
(r) Until the second anniversary of the Time of Purchase, not to, and not to permit any affiliates under its control to, purchase any Restricted Shares or Issuable Common Stock unless, immediately upon any such purchase, the Company or any such affiliate shall (1) cancel such Restricted Shares and/or (2) treat such Issuable Common Stock as treasury shares ineligible for re-issuance.
(s) Not to, and not to permit any of its affiliates or any person acting on its or their behalf (other than the Initial Purchasers, as to which no agreement is made) to, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Restricted Shares or the Issuable Common Stock under the Act.
(t) The Company will reserve and keep available at all times, free of preemptive rights, the full number of shares of Issuable Common Stock.
(u) The Company will use its best efforts to effect the listing of the Issuable Common Stock, prior to the Time of Purchase, on The New York Stock Exchange subject only to official notice of issuance.
(v) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 60 days after following the Closing Timedate hereof, without the prior written consent of the UnderwriterRepresentatives, offer, sell or contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, or announce the offering of, any shares of, of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock (other than the Restricted Shares); provided, however, that the Company may issue and sell Common Stock or securities convertible into or exercisable exchangeable for shares of, Common Stock other than in connection with pursuant to any employee stock option plan, stock ownership plan or arrangement dividend reinvestment plan of the Company existing and in effect at the date hereof, and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants existing and outstanding at the date hereof.
(w) Any information provided by the Company to publishers of publicly available databases about the terms of the Restricted Shares shall include a statement that the Restricted Shares have not been registered under the Act and are subject to restrictions under Rule 144A under the Act and Regulation S under the Act.
(x) The Company will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Restricted Shares.
(y) Between the date hereof and the Time of Purchase, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price.
(z) The Company will cause the proceeds of the issuance and sale of the Restricted Shares to be applied for the purposes described in the ProspectusOffering Memorandum.
Appears in 1 contract
Samples: Purchase Agreement (CMS Energy Corp)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representatives promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Certificates and their terms not otherwise specified in the preliminary prospectus or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representatives and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) hereofto which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Certificates have been sold by the Underwriters, then prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Certificates) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned by the Company (or exercisable rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Certificates, containing only information that describes the final terms of the Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectusoffering of the Certificates.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt advise you promptly of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff proposal to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
Prospectus (c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and except by documents filed therewith and signed copies of all consents and certificates of experts as under the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Exchange Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested will not effect such amendment or supplement (except by the Underwriter during the period when the Prospectus is required to be delivered documents filed under the 1933 Exchange Act) without your consent, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company which consent will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectusnot be unreasonably withheld. If, at any time when a prospectus after the public offering of the Offered Certificates as the Prospectus is required by the 1933 Act law to be delivered in connection with sales of the SecuritiesOffered Certificates by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with the requirements of the 1933 Act or the 1933 Act Regulationslaw, the Company will promptly shall prepare and file with furnish, at its own expense, to the CommissionUnderwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Offered Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, subject either amendments or supplements to Section 3(b) hereofthe Prospectus so that the statements in the Prospectus as so amended or supplemented will not, such amendment in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or supplement as may be necessary amendments or supplements to correct such untrue statement or omission or to make the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such requirementsamendments or supplements to be filed promptly with the Commission.
(fb) The Company will use its best effortsDuring the period mentioned in paragraph (a) above, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not be obligated to file any general consent to service notify each Underwriter immediately 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales effectiveness of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement Statement, (including an amended Prospectusii) containing all information so omitted.
(o) The Company will, at its expense, subsequent the transmittal to the issuance Commission for filing of the Securities, prepare and distribute any supplement to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, Prospectus or any transaction with document that would as a related party which is required to result thereof be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated incorporated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described reference in the Prospectus., (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The In further consideration of the agreements of the Initial Purchasers herein contained, the Company covenants with the Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment furnish to the Registration StatementInitial Purchasers, without charge, as many copies of the Preliminary Offering Circular and the Offering Circular (as supplemented or amended if the Company shall have become effective, made any supplements or any supplement to amendments thereto) as the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentRepresentative may reasonably request.
(b) The Company will not at any time file or make any amendment give the Initial Purchasers notice of its intention to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), prepare any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement Preliminary Offering Circular or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copyOffering Circular, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish the Initial Purchasers and counsel to the Underwriter as many signed and conformed Initial Purchasers with copies of the Registration Statement as originally filed such amendment or supplement, and of each any such amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered supplement to the Underwriter, without charge, from time to time until Preliminary Offering Circular or the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents Offering Circular made subsequent to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at becomes effective shall correct any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit omission to state a material fact necessary in order to make the statements therein not misleadingtherein, in light of the circumstances existing under which they were made, not misleading.
(c) If at any time prior to the time completion of the initial resale of the Notes by the Initial Purchasers any event shall have occurred as a result of which it is necessary to amend or supplement the Offering Circular in order to make the statements therein, in light of the circumstances when the Offering Circular is delivered to a purchaser, not misleading, or if it shall be necessaryif, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements judgment of the 1933 Act Initial Purchasers or counsel to the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereofInitial Purchasers, such amendment or supplement is necessary to ensure that the initial resale of the Notes is exempt from the registration requirements of the Securities Act, the Company will, subject to paragraph (b) of this Section 6, forthwith amend or supplement the Offering Circular by furnishing, at its own expense, to the Initial Purchasers and to dealers (whose names and addresses are furnished to the Company by the Representative) to whom Notes may have been sold by the Initial Purchasers and, upon request, to any other dealers making such request, either amendments to the Offering Circular or supplements thereto so that the statements in the Offering Circular as so amended or supplemented will not, in light of the circumstances when the Offering Circular is delivered to a purchaser, be misleading, or so that such Offering Circular as so amended or supplemented will comply with any requirements necessary for exemption of the initial resale of the Notes from the registration requirements of the Securities Act, as the case may be.
(d) Notwithstanding any provision of paragraph (b) or (c) of this Section 6 to the contrary, the Company's obligations under paragraphs (b) and (c) of this Section 6 shall terminate on the date upon which the Initial Purchasers and their affiliates cease to hold Notes acquired as part of their initial distribution, but in any event not later than nine months from the Closing Time.
(e) So long as any Notes shall remain outstanding, neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) nor any person acting on behalf of the foregoing (other than the Initial Purchasers and any person acting on their behalf, to the extent that any of them may be necessary deemed to correct such untrue statement be acting on behalf of the Company) shall solicit any offer to buy or omission offer to sell the Notes by means of any form of general solicitation or to make general advertising (within the Registration Statement or meaning of Rule 502(c) of Regulation D) in a manner that would require the Prospectus comply with such requirementsregistration of the Notes under the Securities Act.
(f) So long as any Notes shall remain outstanding, neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) nor any person acting on behalf of the foregoing (other than the Initial Purchasers and any person acting on their behalf, to the extent that any of them may be deemed to be acting on behalf of the Company) will engage in any directed selling efforts (as defined in Rule 902 under the Securities Act) with respect to the Notes in a manner that would require the registration of the Notes under the Securities Act.
(g) So long as any Notes shall remain outstanding, neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) will directly, or through any person acting on behalf of the foregoing (other than the Initial Purchasers and any person acting on their behalf, to the extent that any of them may be deemed to be acting on behalf of the Company), sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act) that is or will be integrated with the Notes in a manner that would require the registration of the Notes under the Securities Act.
(h) The Company agrees, so long as any of the Notes are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any and all financial and other information relating to the Company required to be delivered under Rule 144A(d)(4) under the Securities Act in connection with sales of the Notes under Rule 144A, if the Company is not required to file reports with the Commission as a reporting company under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or exempt from reporting pursuant to Rule 12g3-2b under the Exchange Act.
(i) The Company will use its best efforts, in cooperation cooperate with the Underwriter, Initial Purchasers to qualify the Securities Notes for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions as the Underwriter Representative may designate reasonably request and to maintain such qualifications pay filing fees, reasonable attorneys' fees and disbursements in effect for a period of connection therewith in an amount not less than one year from exceeding $15,000 in the effective aggregate (including filing fees and disbursements paid or incurred prior to the date of the Registration Statementthis Agreement becomes effective); provided, however, that the Company shall not be obligated required to qualify as a foreign corporation or to file any general a 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 file annual reports or to subject itself to taxation in respect of doing business in comply with any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required other requirements deemed by the laws of each jurisdiction in which Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effectiveunduly burdensome.
(j) For a period The Company will pay all costs and expenses incident to the performance of five years after the Closing Timeobligations of the Company under this Agreement, including (i) the preparation of the Preliminary Offering Circular, the Offering Circular (including financial statements) and any amendments or supplements thereto, (ii) the preparation and printing of the Notes and the Indenture, (iii) the issuance and delivery of the Notes to the Initial Purchasers (other than transfer taxes), (iv) the furnishing of the opinions, letters and certificates referred to in Section 4 hereof, (v) any fees charged by rating agencies for rating the Notes and (vi) the fees and expenses of any trustee appropriate under the Indenture, including the fees and disbursements of counsel for such trustee in connection with the Indenture, and in the amounts agreed pursuant to separate agreements. In addition, the Company will furnish agrees to pay the reasonable and documented third party out- of-pocket expenses incurred by the Representative in connection with the offer and sale of the Notes to the Underwriter copies of all annual reports, quarterly reports Initial Purchasers (including the reasonable and current reports filed documented third party out-of-pocket expenses incurred by the Company Representative in connection with the Commission, such other documents, reports, proxy statements road show prior to the execution of this Agreement and information as shall be furnished by the Company reasonable and documented fees and expenses of counsel to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably requestInitial Purchasers).
(k) The Company will provide If the Initial Purchasers shall not take up and pay for the Notes due to the holders failure of the Common Stock annual reports containing financial statements audited by Company to comply with any of the Company’s independent auditors and, upon written requestconditions specified in Section 4 hereof, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents 's sole obligation and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys liability shall be delivered to each reimburse the Initial Purchasers for their reasonable and documented third party out-of-pocket expenses described in the last sentence of the Company and the Underwriter.
(nSection 6(j) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Purchase Agreement (Mirant Americas Generating Inc)
Certain Covenants of the Company. The Company covenants with the Underwriter Agent as follows:
(a) The Company will use its best efforts shall furnish to cause the Agent, without charge, at the date and time specified by the Agent and during such period after the first date of the public offering of the Shares when the Prospectus is, in the opinion of counsel, required by law to be delivered in connection with sales of the Shares by the Agent or dealer, as many copies of the Prospectus, and any supplements or amendments thereto, as the Agent may reasonably request.
(b) The Company shall furnish to the Agent as many conformed copies of the Registration Statement (as originally filed) and of all amendments thereto, whether filed before or after such Registration Statement became effective, as the Agent may reasonably request.
(c) Promptly following the execution of this Agreement, the Company shall prepare a Prospectus Supplement that complies in all material respects with the Securities Act and that sets forth the material information regarding the Shares, any public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Agent and the Company deem appropriate in connection with the offering of the Shares. The Company will timely transmit copies of the Prospectus Supplement to become effective the Commission for filing pursuant to Rule 424 under the Securities Act.
(d) Before amending or supplementing the Registration Statement or the Prospectus during the period referred to in Subsection 3(a) above, the Company shall furnish the Agent with a copy of each such proposed amendment or supplement, and will shall not file any such proposed amendment or supplement if the Agent reasonably objects in good faith by notice to the Company within three business days of receipt thereof; provided, however, that the Company shall have no such obligation under this Subsection 3(d) with respect to periodic reports filed pursuant to Section 13(d) of the Exchange Act.
(e) During the period mentioned in Subsection 3(a) above, the Company shall notify the Underwriter immediately, and confirm the notice in writing, Agent with reasonable promptness of (i) when the Registration Statement, or effectiveness of any post-effective amendment to the Registration Statement, shall have become effective(ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding of which the Company is aware for any of such purposes. The Company will ; and to use every its reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use andbest efforts, if any such order is issued, to obtain the lifting thereof at the earliest possible momentas early as practicable.
(bf) The Company will not at any time file or make any amendment shall use its best efforts to comply with the Registration Statement orSecurities Act, if the Company has elected to rely upon Rule 430A Exchange Act and, in each case, the rules and regulations of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, Commission thereunder so as to permit the completion of the distribution of the Securities Shares as contemplated in this Agreement and in the Prospectus. If, If at any time when a prospectus is required by the 1933 Securities Act to be delivered by the Agent or a dealer in connection with sales of the Securities, Shares as contemplated by the Prospectus any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Agent or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaserpurchaser of the Shares, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Securities Act or the 1933 Act Regulationsrules and regulations of the Commission thereunder, the Company will promptly prepare and file with the Commission, subject to Section 3(bSubsection 3(d) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(fg) The Company will use its best efforts, in cooperation shall fully cooperate with the Underwriter, Agent to qualify the Securities Shares for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter Agent may designate and to maintain such qualifications in effect for a period of not less than one year from necessary for the effective date distribution of the Registration StatementShares; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities shares 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 shall file such statements and reports as may be required by the laws of each jurisdiction in which Securities the Shares have been qualified as above provided.
(gh) The Company will timely file such reports pursuant to the Exchange Act necessary to make generally availableavailable to its security holders, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale 158 of the Securities in Act) for the manner specified in purposes of, and to provide the Prospectus under benefits contemplated by, the caption “Use last paragraph of ProceedsSection 11(a) of the Securities Act.”
(i) The Company, during If the period when a prospectus is required by proceeds from the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 Offering of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing TimeShares exceed $10,000,000 in aggregate, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the UnderwriterAgent, during the period commencing on the date hereof and ending 90 days after the date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of, of Common Stock or any securities shares convertible into or exercisable or exchangeable for shares of, Common Stock (whether such shares or any such shares are now owned by the Company or hereafter reacquired) or (ii) enter into any swap or other than agreement that transfers to another, in connection with whole or in part, any of the economic consequences of ownership of the 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 shares, in cash or otherwise. The foregoing sentence shall not apply to (x) the Shares to be offered for sale hereunder or options to be issued or shares to be sold under the Company’s stock option plan or arrangement and the stock purchase plan (each as described in the Prospectus) or (y) securities issued in connection with a partnership, joint or collaborative venture, licensing or similar arrangements involving one or more of the Company’s or a third party’s pharmaceutical products, intellectual property and/or drug candidates.
(j) The Company shall use its reasonable best efforts to obtain a “lock-up” agreement from each person listed in Exhibit D hereto, each substantially in the form of Exhibit E hereto, prior to the Closing Time.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter you as follows:
(a) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or not at any post-effective time make any amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.to
(b) The Company will not at any time file or make any amendment promptly deliver to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriteryou, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when from the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply date hereof to the best date of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities by you, such number of copies of the Offering Memorandum, as contemplated in this Agreement and in it may then be amended or supplemented, or the Prospectus. Preliminary Offering Memorandum, as it may then be amended or supplemented, as you may reasonably request.
(c) If, at any time when a prospectus is required by the 1933 Act prior to be delivered in connection with sales completion of the Securitiesdistribution of the Securities by you, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of your counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleadingtherein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessaryif, in the reasonable opinion of either such counselyour counsel or counsel for the Company, at any such time it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order Offering Memorandum to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company Company, at its own expense, will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to correct a purchaser, be misleading or so that such untrue statement Offering Memorandum as so amended or omission or to make the Registration Statement or the Prospectus supplemented will comply with applicable law, as the case may be, and furnish you such requirementsnumber of copies as you may reasonably request.
(fd) The Company will use its best effortsendeavor, in cooperation with the Underwriteryou, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one a year from the effective date of the Registration StatementOffering Memorandum; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdictions as you may request.
(e) Except following the effectiveness of the Registration Statement, neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of Regulation D) will solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising (within the meaning of Rule 502(C) of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the 1933 Act.
(f) Neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of the 1933 Xxx) xxll offer, sell or solicit offers to buy or otherwise negotiate
(g) The Company will make generally availablenot be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under the 1940 Act, and will not be or become a closed-end investment company required to be registered, but not registered, thereunder.
(h) During the period from the Closing Time to the earlier of (i) two years after the Closing Time or (ii) the date of effectiveness of the Registration Statement, the Company will not, and will not permit any of its affiliates (as such term is defined in Rule 144 under the 1933 Xxx) to, resell any of the Securities that have been reacquired thereby, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the 1933 Act.
(i) The Company will, so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 158 144(a)(3) under the 1933 Act, either (i) file reports and other information with the Commission under Section 13 or Section 15(d) of the 1933 Act Regulations 1934 Act, or (“Rule 158”)ii) in the event the Company is not subject to Section 13 or Section 15(d) of the 1934 Act, furnish to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale prospective purchasers of the Securities in designated by such holders, upon request of such holders or such prospective purchasers, the manner specified in the Prospectus information required to be delivered pursuant to Rule 144A(d)(4) under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered permit compliance with Rule 144A in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 resale of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) Securities. For a period of five years after the Closing Time, the Company will furnish make available to the Underwriter you upon request copies of all annual reports, quarterly such reports and current reports filed by the Company information, together with the Commission, such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generallythe holders of the Securities issued by it.
(j) If requested by you, and such other public information concerning the Bank or the Company as will use its best efforts in cooperation with you to permit the Underwriter may reasonably requestSecurities sold in transactions described in Section 2(d)(ii) hereof to be eligible for clearance and settlement through The Depository Trust Company.
(k) The Company Each Security will provide bear the following legend until such legend shall no longer be necessary or advisable because such Security is no longer subject to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors andrestrictions on transfer described therein: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, upon written requestAS AMENDED (THE "SECURITIES ACT"), the Company’s annual reports on Form 10-K or Form 10-KSBOR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, as applicable.SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
(l) The Company will file apply the net proceeds that it receives from the offer and sale of the Securities issued by it in the manner set forth with Nasdaq all documents and notices required by Nasdaq respect to it in the Offering Memorandum under the heading "Use of companies that have issued securities that are quoted on the Nasdaq National MarketProceeds."
(m) The Prior to the Closing Time, the Company shall cause will not issue any press release or other communications directly or indirectly or hold any press conference with respect to be prepared by its counsel one the Company, the condition, financial or more “blue sky” surveys (eachotherwise, a “Blue Sky Survey”) for use in connection with or the offering earnings, business affairs or business prospects of the Securities as contemplated by Company, without your prior consent, which shall not be unreasonably withheld, unless in the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each judgment of the Company and the Underwriterits counsel, and after notification to you, such press release or communication is required by law.
(n) If, at For a period of 120 days from the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance date of the SecuritiesOffering Memorandum, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, without your prior to written consent, directly or indirectly, offer, pledge, sell, grant any option, right or warrant for the Option Closing Date or thirty (30) days after the date sale of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent any debt securities of the Underwriter, any shares of, Company (or any securities convertible or exchangeable into or exercisable for shares ofdebt securities of the Company), Common Stock or file any registration statement with respect to the foregoing, other than in connection with any plan the Securities or arrangement described the Exchange Securities referred to in the ProspectusRegistration Rights Agreement.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Underwriter immediatelyExchange Act) without the consent of each Underwriter, and confirm which consent will not be unreasonably withheld. If, at any time after the notice in writing, (i) when public offering of the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to Offered Certificates as the Prospectus or any amended Prospectus shall have been filed, (ii) is required by law to be delivered in connection with sales of the receipt Offered Certificates by an Underwriter or a dealer, any event shall occur as a result of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at Embraer's expense, to the Underwriters and to the dealers (whose names and addresses the Underwriters will furnish to the Company) to which Offered Certificates may have been sold by the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to each of the Underwriter Underwriters as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as each of the Underwriter may Underwriters reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the principal amount of the Offered Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period of not less than one year from the effective date distribution of the Registration StatementOffered Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such jurisdiction.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file promptly furnish to each of the Underwriters, upon request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the Company filed with the Commission; PROVIDED THAT providing a website address at which such Annual Reports and any such definitive proxy statements and reports as may be required by the laws of each jurisdiction in which Securities have been qualified as above providedaccessed will satisfy this clause (f).
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterUnderwriters, offer, sell, or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Offered Certificates) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned or exercisable leased by the Company (or rights relating thereto), excluding the pending exchange offer for shares of, Common Stock other than in connection with any plan or arrangement described in the ProspectusCompany's Floating Rate Secured Subordinated Notes due 2007.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representatives promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Class C Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Class C Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Class C Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Class C Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(g)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Class C Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Class C Certificates) not otherwise specified in the effective date of preliminary prospectus or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Class C Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Class C Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representatives and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActClass C Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Class C Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Class C Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time it is when delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) hereofto which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Class C Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Class C Certificates have been sold by the Underwriters, prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Class C Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Class C Certificates) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned by the Company (or exercisable rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Class C Certificates, containing only information that describes the final terms of the Class C Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectusoffering of the Class C Certificates.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representatives promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Class B Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Class B Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Class B Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Class B Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Class B Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Class B Certificates) not otherwise specified in the effective date of preliminary prospectus or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Class B Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as a representative of the Underwriters in connection with the offering, the price at which the Class B Certificates are to be purchased by the Underwriters from the Class B Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representatives and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActClass B Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Class B Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Class B Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) hereofto which Class B Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Class B Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Class B Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Class B Certificates have been sold by the Underwriters, then prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Class B Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Class B Certificates, the Class AA Certificates, the Class A Certificates, or a class of pass through certificates junior to the Class B Certificates and related equipment notes) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned by the Company (or exercisable rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Class B Certificates, containing only information that describes the final terms of the Class B Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectusoffering of the Class B Certificates.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 of any the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a term sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities (a “Term Sheet”) and will file such Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158158 of the 1933 Act Regulations).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(f) To the extent specified in the Terms Agreement, the Company will use its best efforts to (i) effect the authorization of the Offered Securities for listing on the New York Stock Exchange, Inc. at the applicable Closing Time or (ii) ensure that by the applicable Closing Time the Financial Services Authority, in its capacity as the United Kingdom Listing Authority (the “UKLA”), will have granted permission for the admission of the Offered Securities to the Official List subject to allotment and the London Stock Exchange plc will have granted permission for the admission of the Offered Securities to trading or (iii) effect the authorization of the Offered Securities for listing on the Luxembourg Stock Exchange, subject to their issuance.
(g) The Company shall, on or before the date of the publication of the listing particulars, if any, in relation to the Offered Securities, deliver a copy thereof to the Registrar of Companies in England and Wales in accordance with the applicable regulations, if so required by such applicable regulations.
(h) The If the Offered Securities include Debt Securities, the Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission thereunder, the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 4(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the holders Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectusv) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ov) In respect of a series of Debt Securities, which must be redeemed before the first anniversary of the date of its issue, the Company will issue such Debt Securities only if the following conditions apply (or the Debt Securities can otherwise be issued without contravention of section 19 of the FSMA): (a) each relevant Underwriter represents, warrants and agrees in the terms set out in Section 2(a); and (b) the redemption value of each such Debt Security is not less than £100,000 (or an amount of equivalent value denominated wholly or partly in a currency other than sterling), and no part of any Debt Security may be delivered unless the redemption value of that part is not less than £100,000 (or such an equivalent amount).
(i) If the Offered Securities include Shares, the Company also covenants with you and each Underwriter as follows:
(i) The Company will not while the completion of the distribution of such Offered Securities is pending, file or make any amendment to the Registration Statement or the ADS Registration Statement, or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement and the ADS Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement or the ADS Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement and the ADS Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission thereunder so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 4(i)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement, the ADS Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, at its expensewhile the completion of the distribution of any Offered Shares is pending, subsequent notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement or the ADS Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the ADS Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or the ADS Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(pv) The Company will not, prior comply with the Deposit Agreement so that ADRs evidencing any ADSs representing Offered Shares will be executed and delivered by the Depositary to the Option Underwriters at the applicable Closing Time or Date or thirty (30) days after of Delivery as the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectuscase may be.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants and agrees with the Underwriter each Purchaser as follows:
(a) None of the Company or any of its Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(b) The Company will not become, at any time prior to the expiration of three years after the Closing Date, an open-end investment company, unit investment trust, closed-end investment company or face-amount certificate company that is or is required to be registered under the Investment Company Act.
(c) None of the proceeds of the Series G Stock will be used to reduce or retire, any insider note or convertible debt held by an officer or director of the Company.
(d) Subject to Section 10 of this Agreement, the Conversion Shares and the Warrant Shares will be tradable on the OTC Bulletin Board, or such market on which the Company’s shares are subsequently listed or traded, immediately following their issuance.
(e) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, ensure that no officer or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) director of the receipt Company sells any shares of any comments Company Common Stock from the Commission’s staff, (iii) of any request of Closing Date until the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order date that is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until 90 days following the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Actdefined in Section 9 below. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best represents that each of its ability with the 1933 Act officers and the 1933 Act Regulations, directors is aware of this commitment and the 1934 Act and the 1934 Act Regulations, so as has agreed to permit the completion use his or her best efforts not to sell any shares of the distribution of the Securities as contemplated in Company Common Stock during this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirementsperiod.
(f) The Board of Directors of the Company will use its best efforts, in cooperation with propose to the Underwriter, to qualify Company’s shareholders within 10 business days following the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date filing of the Registration Statement; providedStatement with the SEC an amendment to the Company’s Articles of Incorporation to increase the number of authorized shares of Company Common Stock to an amount at least sufficient to issue the Conversion Shares upon conversion of the Shares assuming a Floor Price of $.03 per share, howeverand to amend the certificates of designation for each of the Company’s Series E Convertible Preferred Stock (“Series E Stock”) and Series F Convertible Preferred Stock (“Series F Stock”) to clarify (i) the seniority of the Series G Stock over the Series F Stock and Series E Stock, that and (ii) the Company shall not be obligated seniority of the Series F Stock over the Series E Stock, with respect 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 Securities have been qualified as above providedliquidation preferences.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective do and will file promptly perform all documents things required to be filed with done and performed by it under this Agreement and the Commission pursuant other Transaction Documents and to Section 13 and 14 satisfy all conditions precedent on its part to the obligations of the 1934 Act subsequent Purchasers to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports purchase and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance accept delivery of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Debt Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Debt Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Debt Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Debt Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Debt Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Debt Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Debt Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Debt Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Debt Securities, other than as set forth in such effective dateTerms Agreement.
(hf) To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the authorization of the Offered Debt Securities for listing on the listing exchange as specified in the applicable Final Term Sheet as soon as reasonably practicable.
(g) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Debt Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Debt Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 3(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the holders Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectusv) containing all information so omitted.
(o) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will, at its expense, subsequent will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants and agrees with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representatives promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representative, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Shares, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Shares by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission. If requested by the Underwriters, the Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the offering and shall file with the Commission such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business within two business days after the date hereof; provided that the Company shall furnish the Underwriters with copies of such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Underwriters or counsel to the Underwriters shall reasonably object.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Shares for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver prepare a Prospectus that complies with the Securities Act and that sets forth the number of the Shares and their terms not otherwise specified in the preliminary prospectus or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the number of the Shares that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Shares are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representatives and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActShares. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus to the Commission for filing pursuant to Rule 424 under the Securities Act (as supplemented or amended) as the Underwriter may reasonably requestwithout reliance on Rule 424(b)(8)).
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Shares prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably objects.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Shares at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) hereofto which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus”, as may so amended or supplemented, will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Shares for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may designate Representatives reasonably designates and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Shares; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The If the third anniversary of the initial effective date of the Registration Statement occurs before all the Shares have been sold by the Underwriters, then prior to the third anniversary the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Shares to continue without interruption, in which case references herein to the Registration Statement shall include the new registration statement as it shall become effective.
(i) With respect to each sale of the Shares, the Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regulations) covering a twelve month period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such the “effective date.
” (has defined in such Rule 158) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effectiveStatement.
(j) For a period of five years 30 days after the applicable Closing TimeDate, the Company will furnish not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the Underwriter copies Commission a registration statement under the Securities Act relating to, any shares of all annual reportsCommon Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8 or any successor forms thereto, quarterly reports and current reports filed by or relating solely to any of the Company with employee benefit plans of the CommissionCompany, such as described in the Time of Sale Prospectus), or publicly disclose the intention to undertake any of the foregoing, or (ii) enter into any swap or other documentsagreement that transfers, reportsin whole or in part, proxy statements and information as shall be furnished by any of the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders economic consequences of ownership of the Common Stock annual reports containing financial statements audited by or any such other securities or publicly disclose the Company’s independent auditors andintention to undertake any of the foregoing, upon written request, the Company’s annual reports on Form 10-K whether any such transaction described in clause (i) or Form 10-KSB, as applicable.
(lii) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause above is to be prepared settled by its counsel one delivery of Common Stock or more “blue sky” surveys (eachsuch other securities, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey cash or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Timeotherwise, without the prior written consent of the UnderwriterRepresentatives except for any transaction with the U.S. Treasury Department in connection with the Loan Program and the Payroll Support Program under the Coronavirus Aid, Relief, and Economic Security Act.
(k) Notwithstanding the foregoing, such limitations shall not apply to: (i) the Shares to be sold hereunder; (ii) any shares ofof Common Stock of the Company issued (or withheld) upon the exercise of any options, restricted stock units or other equity-based awards under existing equity compensation plans and incentive retention plans described in the Time of Sale Prospectus; (iii) any options, restricted stock units or other equity-based awards granted under existing equity compensation plans and incentive retention plans; (iv) any warrants of the Company issued to the United States government, the U.S Department of Treasury or any similar agency under the Coronavirus Aid, Relief, and Economic Security Act (and any shares of Common Stock of the Company issued upon the exercise thereof); and (v) any of the actions described in the above paragraph with respect to the issuance of up to 5% of outstanding shares of Common Stock of the Company (or any securities convertible into or exercisable or exchangeable for shares of, Common Stock other than such shares) in connection with any plan acquisitions, strategic partnerships or arrangement other commercial relationships, provided that the recipient of any such issuances described in this clause (vi) shall sign a lock-up agreement in the Prospectusform attached hereto at Exhibit A.
(l) An application for the listing of the Shares shall have been submitted to the NASDAQ Global Select Market, and the NASDAQ Global Select shall have provided a notification to the Company confirming that the listing of the shares.
(m) Each of the Company’s executive officers and directors shall have delivered to the Representatives fully-executed “lock-up” agreements, substantially in the form of Exhibit A hereto, relating to sales and certain other dispositions of shares of Common Stock or certain other securities, and each such agreement, shall be in full force and effect on the applicable Closing Date and each Date of Delivery, as the case may be.
(n) The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
Appears in 1 contract
Certain Covenants of the Company. The In further consideration of the agreements of the Initial Purchasers herein contained, the Company covenants with the Underwriter as follows:
(a) The Company will use its best efforts to cause To advise the Registration Statement to become effective and will notify Representative promptly and, if requested by the Underwriter immediatelyRepresentative, and confirm the notice such advice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness of the Registration Statement qualification or exemption from qualification of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities Restricted Notes for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 6(d) hereof, or of the institution or threatening initiation of any proceedings proceeding by any state securities commission or any other federal or state regulatory authority for any of such purposespurpose. The Company will shall use every reasonable effort its best efforts to prevent the issuance of any such stop order or order suspending the qualification or exemption of any order preventing Restricted Notes under any state securities or suspending such use blue sky laws and, if at any such time any state securities commission or other federal or state regulatory authority shall issue an order is issuedsuspending the qualification or exemption of any Restricted Notes under any state securities or blue sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting thereof of such order at the earliest possible momenttime.
(b) The Company will not at any time file or make any amendment To deliver to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the UnderwriterInitial Purchasers, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430Apracticable, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of many copies of the Prospectus Offering Memorandum (as supplemented or amendedamended if the Company shall have made any supplements or amendments thereto) as the Underwriter Initial Purchasers may reasonably request. Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 8 hereof, the Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(ec) The Company will comply For such period of time as the Initial Purchasers are required by law or customary practice to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion deliver an offering memorandum in respect of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. IfRestricted Notes, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, if any event shall occur or condition exist have occurred as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary Offering Memorandum in order to make the statements therein not misleadingtherein, in light of the circumstances existing at when the time it Offering Memorandum is delivered to a purchaseran Eligible Purchaser, not misleading, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time becomes necessary to amend the Registration Statement or amend or supplement the Prospectus in order Offering Memorandum to comply with the requirements of the 1933 Act or the 1933 Act Regulationslaw, the Company will promptly to forthwith prepare and file with the Commission, subject to Section 3(b) hereof, such an appropriate amendment or supplement to the Offering Memorandum and deliver to the Initial Purchasers, without charge, such number of copies thereof as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirementsreasonably requested.
(fd) The Company will To use its best efforts, in cooperation with the Underwriter, efforts to qualify the Securities Restricted Notes for offering offer and sale under the applicable securities or blue sky laws of such states and other jurisdictions as the Underwriter Initial Purchasers may designate and to maintain such qualifications pay (or cause to be paid), or reimburse (or cause to be reimbursed) the Initial Purchasers and their counsel for, reasonable filing fees and expenses in effect for a period connection therewith (including the reasonable fees and disbursements of not less than one year from counsel to the effective Initial Purchasers and filing fees and expenses paid and incurred prior to the date of the Registration Statement; hereof), provided, however, that the Company shall not be obligated required to qualify to do business as a foreign corporation or as a securities dealer or to file any a general consent to service of process or to qualify file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(e) So long as the Restricted Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Restricted Notes a foreign corporation financial report of the Company on a consolidated basis, all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(f) So long as any of the Restricted Notes or as a dealer in securities in Issuable Common Stock are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and remain outstanding and during any jurisdiction period in which it the Company is not so qualified subject to Section 13 or 15(d) of the Exchange Act, to subject itself make available to taxation any holder of Restricted Notes in respect connection with any sale thereof and any prospective purchaser 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 Restricted Notes from such holder, the information required by Rule 144A(d)(4) under the laws of each jurisdiction in which Securities have been qualified as above providedAct.
(g) The Company will make generally availableTo pay all expenses, within fees and taxes (other than transfer taxes on sales by the meaning of Rule 158 respective Initial Purchasers) in connection with the issuance and delivery of the 1933 Act Regulations Restricted Notes and the Issuable Common Stock, except that the Company shall be required to pay the fees and disbursements (“Rule 158”other than disbursements referred to in Section 6(d) hereof) of PW, counsel to the Initial Purchasers, only in the events provided in Section 6(h) hereof, the Initial Purchasers hereby agreeing to pay such fees and disbursements in any other event, and that except as provided in such Section 6(h), to the holders Company shall not be responsible for any out-of-pocket expenses of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (Initial Purchasers in form complying connection with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective datetheir services hereunder.
(h) The Company will use If the net proceeds received by it from Initial Purchasers shall not take up and pay for the sale Restricted Notes due to the failure of the Securities in Company to comply with any of the manner conditions specified in Section 5 hereof, or, if this Agreement shall be terminated in accordance with the Prospectus under provisions of Section 12 hereof prior to the caption “Use Time of ProceedsPurchase or the Date of Delivery, as the case may be, to pay the reasonable fees and disbursements of PW, counsel to the Initial Purchasers, and, if the Initial Purchasers shall not take up and pay for the Restricted Notes due to the failure of the Company to comply with any of the conditions specified in Section 5 hereof, to reimburse the Initial Purchasers for their reasonable out-of-pocket expenses not to exceed $10,000 incurred in connection with the financing contemplated by this Agreement.”
(i) The Company, during During the period when referred to in Section 6(c) hereof, to not amend or supplement the Offering Memorandum unless the Company has furnished the Initial Purchasers and counsel to the Initial Purchasers with a prospectus is required by copy for their review and comment a reasonable time prior to the 1933 Act making of such amendment or supplement and has reasonably considered any comments of the Initial Purchasers, and not to be delivered make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in connection writing after consultation with sales the Initial Purchasers.
(j) During the period referred to in Section 6(c) hereof, to furnish the Initial Purchasers with copies of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 13, 14 or 15(d) of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably requestExchange Act.
(k) The Company will provide During the period referred to in Section 6(c) hereof, to comply with all requirements under the Exchange Act relating to the holders timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Common Stock annual reports containing financial Exchange Act and of its proxy statements audited by pursuant to Section 14 of the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicableExchange Act.
(l) The Company will file To comply in all material respects with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on its agreements set forth in the Nasdaq National MarketRegistration Rights Agreement.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) To obtain the approval of DTC for use in connection with the offering "book-entry" transfer of the Securities as contemplated by Restricted Notes, and to comply in all material respects with all of its agreements set forth in the Prospectus and a copy of each Blue Sky Survey representation letter or surveys shall be delivered to each letters of the Company and to DTC relating to the Underwriterapproval of the Restricted Notes by DTC for "book-entry" transfer.
(n) IfNot to (or permit any affiliate (as defined in Rule 144 under the Act) to) sell, at offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing Act) that would be integrated with the Commission in accordance with Rule 430A and Rule 424(b), copies sale of an amended Prospectus or, if required by Rule 430A, a post-effective amendment the Restricted Notes to the Registration Statement (including an amended Prospectus) containing all information so omittedInitial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Restricted Notes under the Act.
(o) The Company willNot to voluntarily claim, at its expenseand to actively resist any attempts to claim, subsequent to the issuance benefit of any usury laws against the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies holders of the documents used in connection with the issuance of the Securitiesany Restricted Notes.
(p) The Company will not, prior to During the Option Closing Date or thirty (30) days period of two years after the date Time of this AgreementPurchase, whichever occurs firstnot to, incur and not permit any material liability or obligationof its affiliates (as defined in Rule 144 under the Act) to, direct or contingent, or enter into resell any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated Restricted Notes which constitute "restricted securities" under Rule 144 under the Act that have been reacquired by the Prospectusany of them.
(q) To take all reasonable action necessary to enable S&P, Xxxxx'x and Fitch to provide their respective credit ratings of the Restricted Notes.
(r) Until the second anniversary of the Time of Purchase, not to, and not to permit any affiliates under its control to, purchase any Restricted Notes or Issuable Common Stock unless, immediately upon any such purchase, the Company or any such affiliate shall (1) submit such Restricted Notes to the Trustee for cancellation and/or (2) treat such Issuable Common Stock as treasury shares ineligible for re-issuance.
(s) Not to, and not to permit any of its affiliates or any person acting on its or their behalf (other than the Initial Purchasers, as to which no agreement is made) to, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Restricted Notes or the Issuable Common Stock under the Act.
(t) The Company will reserve and keep available at all times, free of preemptive rights, the full number of shares of Issuable Common Stock.
(u) The Company will use its best efforts to effect the listing of the Issuable Common Stock, prior to the Time of Purchase, on The New York Stock Exchange subject only to official notice of issuance.
(v) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 60 days after following the Closing Timedate hereof, without the prior written consent of the UnderwriterRepresentative, offer, sell or contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, or announce the offering of, any shares of, of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock (other than the Restricted Notes); provided, however, that the Company may issue and sell Common Stock or securities convertible into or exercisable exchangeable for shares of, Common Stock other than in connection with pursuant to any employee stock option plan, stock ownership plan or arrangement dividend reinvestment plan of the Company existing and in effect at the date hereof, and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants existing and outstanding at the date hereof.
(w) Any information provided by the Company to publishers of publicly available databases about the terms of the Restricted Notes shall include a statement that the Restricted Notes have not been registered under the Act and are subject to restrictions under Rule 144A under the Act and Regulation S under the Act.
(x) The Company will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Restricted Notes.
(y) Between the date hereof and the Time of Purchase, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price.
(z) The Company will cause the proceeds of the issuance and sale of the Restricted Notes to be applied for the purposes described in the ProspectusOffering Memorandum.
Appears in 1 contract
Samples: Purchase Agreement (CMS Energy Corp)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The If reasonably requested by you in connection with the offering of the Securities, the Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished prepare a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus supplement containing such information as the Underwriter may reasonably request, you and the Company hereby consents to deem appropriate immediately following the use execution of such copies for purposes permitted by this Agreement, the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the prepare a Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability Supplement that complies with the 1933 Act and the 1933 Act Regulations, Regulations and that sets forth the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution principal amount of the Securities as contemplated in this Agreement and their terms not otherwise specified in the ProspectusIndenture, the name of each Underwriter participating in the offering and the principal amount of the Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance any delayed delivery arrangements and such other information as you and the Company deem appropriate in connection with the offering of the Securities. If, The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters an electronic copy of the preliminary prospectus supplement and as many copies of the Prospectus as you shall reasonably request.
(b) If at any time when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(f), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will, subject to Section 3(f), file all documents required to be filed with the Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will inform you of its intention to file any amendment to the Registration Statement or any supplement or revision to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise; and the Company will furnish you with copies of any such amendment or supplement at a reasonable time in advance of filing; and will not file any such documents to which the Underwriters or their counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the filing of any supplement to the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to promptly obtain the lifting thereof.
(f) The Company has furnished or will, upon request, furnish to you, without charge, one signed copy of the Registration Statement (as originally filed), of any Rule 462(b) Registration Statement, and of all amendments thereto, whether filed before or after the Registration Statement became effective (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) (through the end of the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities) and conformed copies of all consents and certificates of experts, as you may reasonably request.
(g) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 Statementdesignate; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided.
(gh) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 45 days (or 90 days days, in the case of a period that is also the Company's fiscal year) after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) 158 of the 1933 Act Regulations), covering a twelve-month period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such the "effective date.
" (has defined in said Rule 158) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of ProceedsRegistration Statement.”
(i) The Company, during During the period when a prospectus is required by beginning on the 1933 Act date hereof and continuing to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after including the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date directly or thirty indirectly, offer for sale, sell, pledge or otherwise dispose of (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transactiontransaction or device which is designed to, other than or could be expected to, result in the ordinary course of business, or disposition by any transaction with a related party which is required to be disclosed person at any time in the Prospectus pursuant to Item 404 future of) any debt securities of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated guaranteed by the Prospectus.
(q) The Company will not sell or issue, contract which are substantially similar to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, Securities without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the ProspectusUnderwriters.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The If reasonably requested by you in connection with the offering of the Offered Securities, the Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished prepare a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus supplement containing such information as the Underwriter may reasonably request, you and the Company hereby consents deem appropriate, and, prior to or immediately following the use execution of such copies for purposes permitted by this Agreement, the 1933 Act. The Company will deliver have prepared or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the will prepare a Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability Supplement that complies with the 1933 Act and the 1933 Act RegulationsRegulations and that sets forth the principal amount of the Offered Securities and their terms not otherwise specified in the Indenture or the basic Prospectus, the name of each Underwriter participating in the offering and the principal amount of the Offered Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and the 1934 Act such other information as you and the 1934 Act Regulations, so as to permit Company deem appropriate in connection with the completion offering of the distribution Offered Securities. The Company will promptly transmit copies of the Securities Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the 1933 Act Regulations and will furnish to the Underwriters as contemplated in this Agreement many copies of any preliminary prospectus supplement and in the Prospectus. Prospectus as you shall reasonably request.
(b) If, at any time when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section l3, 14 or 15(d) of the 1934 Act. 12 11
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration Statement (including any filing under Rule 462(b) of the 1933 Act Regulations), any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing; and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably object; except that the Company shall inform you of its intention to file documents pursuant to Section 14(d) of the 1934 Act and shall furnish you with copies of such documents immediately upon the filing thereof, and you or your counsel shall not be entitled to object thereto other than pursuant to Section 3(b). The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAX, xxcept to the extent permitted by Regulation S-T.
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the transmission to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) into the Prospectus but without exhibits, but excluding any such documents filed by the Company under the 1934 Act prior to the end of the most recent fiscal year for which the Company has filed an Annual Report on Form 10-K). The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAX, xxcept to the extent permitted by Regulation S-T.
(g) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 Statementhereof; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Offered Securities for investment under the laws of such jurisdictions as you may request.
(gh) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 45 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regulations), covering (i) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such effective date.
date and (hii) The Company will use a period of 12 months beginning after the net proceeds received by it from date of this Agreement but not later than the sale first day of the Securities in Company's fiscal quarter next following the manner specified in the Prospectus under the caption “Use date of Proceedsthis Agreement.”
(i) The CompanyIf and to the extent specified in Schedule II, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, Company will use its best efforts to cause a registration statement for the Common Stock Offered Securities to be effective duly authorized for listing on the New York Stock Exchange and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of registered under the 1934 Act subsequent to the time the Registration Statement becomes effectiveAct.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter you and, upon request, to each Underwriter, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms l0-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.. 14 13
(k) The Between the date hereof and the Closing Time or such other date as may be specified in Schedule II, the Company will provide not, without your prior consent, offer or sell, or enter into any agreement to sell, any debt securities issued or guaranteed by the Company with a maturity of more than one year in any public offering (other than the Offered Securities). This limitation is not applicable to the holders public offering of the Common Stock annual reports containing financial statements audited tax exempt securities guaranteed by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10Company or to such other public offering of long-K or Form 10-KSB, term debt as applicablemay be specified in Schedule II.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on apply the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with proceeds from the offering sale of the Offered Securities as contemplated by for the Prospectus and a copy purposes set forth under the caption "Use of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described Proceeds" in the Prospectus.
Appears in 1 contract
Samples: Purchase Agreement (K N Energy Inc)
Certain Covenants of the Company. The Company covenants with the Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt advise you promptly of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff proposal to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
Prospectus (c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and except by documents filed therewith and signed copies of all consents and certificates of experts as under the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Exchange Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested will not effect such amendment or supplement (except by the Underwriter during the period when the Prospectus is required to be delivered documents filed under the 1933 Exchange Act) without your consent, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company which consent will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectusnot be unreasonably withheld. If, at any time when a prospectus after the public offering of the Class C Certificates as the Prospectus is required by the 1933 Act law to be delivered in connection with sales of the SecuritiesClass C Certificates by the Underwriter or a dealer, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with the requirements of the 1933 Act or the 1933 Act Regulationslaw, the Company will promptly shall prepare and file with furnish, at its own expense, to the CommissionUnderwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Class C Certificates may have been sold by you and to any other dealers upon request, subject either amendments or supplements to Section 3(b) hereofthe Prospectus so that the statements in the Prospectus as so amended or supplemented will not, such amendment in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or supplement as may be necessary amendments or supplements to correct such untrue statement or omission or to make the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such requirementsamendments or supplements to be filed promptly with the Commission.
(fb) The Company will use its best effortsDuring the period mentioned in paragraph (a) above, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and notify the Underwriter as soon as practicable, but not later than 90 days after the close immediately of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales effectiveness of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement Statement, (including an amended Prospectusii) containing all information so omitted.
(o) The Company will, at its expense, subsequent the transmittal to the issuance Commission for filing of the Securities, prepare and distribute any supplement to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, Prospectus or any transaction with document that would as a related party which is required to result thereof be disclosed incorporated by reference in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.the
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The If reasonably requested by you in connection with the offering of the Certificates, the Company will use its best efforts to cause prepare a preliminary prospectus supplement containing such information concerning the Registration Statement to become effective Certificates as you and will notify the Underwriter immediatelyCompany deem appropriate, and confirm immediately following the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) execution of the receipt Terms Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and that sets forth the number or principal amount of any comments Certificates covered thereby, the names of the Underwriters participating in the offering and the number or principal amount of Certificates which each Underwriter severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Commission’s staffCompany, (iii) of any request the initial public offering price, the selling concession and reallowance, if any, and such other information concerning the Certificates as you and the Company deem appropriate in connection with the offering of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesCertificates. The Company will use every reasonable effort promptly transmit copies of the Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any such stop order or of any order preventing or suspending such use andpreliminary prospectus supplement, if any such order is issuedthe Basic Prospectus and the Prospectus Supplement as you shall reasonably request. In addition, to obtain the lifting thereof at extent that any Underwriter (i) has provided to the earliest possible momentCompany Collateral Term Sheets or Series Term Sheets (each as defined below) that such Underwriter has provided to a prospective investor, the Company will file such Collateral Term Sheets or Series Term Sheets as an exhibit to a report on Form 8-K within two Business Days of its receipt thereof, or (ii) has provided to the Company Structural Term Sheets or Computational Materials (each as defined below) that such Underwriter has provided to a prospective investor, the Company will file or cause to be filed with the Commission a report on Form 8-K containing such Structural Term Sheet and Computational Materials, as soon as reasonably practicable after the date of this Agreement, but in any event, not later than the date on which the Final Prospectus is filed with the Commission pursuant to Rule 424.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, If at any time when a prospectus the Final Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Certificates any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Final Prospectus in order that the Final 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the any Registration Statement or amend or supplement the Final Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act RegulationsAct, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Final Prospectus comply with such requirements.
(c) During the period when the Final Prospectus is required by the 1933 Act to be delivered in connection with sales of the Certificates or during the entire period that any Class of Certificates is outstanding which were expected to be publicly offered securities for purposes of ERISA, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period between the date of the applicable Terms Agreement and the Closing Date, the Company will inform you of its intention to file any amendment to any Registration Statement, any supplement to the Final Prospectus or any document that would as a result thereof be incorporated by reference in the Final Prospectus, will furnish you with copies of any such amendment, supplement or other document and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably object.
(e) During the period when the Final Prospectus is required by the 1933 Act to be delivered in connection with the sales of the Certificates, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to any Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Final Prospectus or any document that would as a result thereof be incorporated by reference in the Final Prospectus, (iii) of the receipt of any comments from the Commission with respect to any Registration Statement or the Prospectus, (iv) of any request by the Commission for any amendment to any Registration Statement or any supplement to the Final Prospectus or for additional information relating thereto or to any document incorporated by reference in the Final Prospectus and (v) of the issuance by the Commission of any stop order suspending any effectiveness of any Registration Statement, of the suspension of the qualification of the Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company will furnish to the Representative, without charge, two copies of each Registration Statement as originally filed and of all amendments thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and copies of all consents and certificates of experts as you may reasonably request, and has furnished or will furnish to you, for each other Underwriter, one copy of each Registration Statement as originally filed and of each amendment thereto.
(g) The Company will cause the Trust to make generally available to Certificateholders and to the Representative as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the effective date of the Initial Registration Statement (or, if later, the effective date of the Additional Registration Statement), which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of the Commission promulgated thereunder.
(h) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Securities Certificates for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 StatementTerms Agreement applicable to such Certificates; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities the Certificates have been qualified as above providedprovided above.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The CompanyTo the extent, during if any, that the period when a prospectus is required rating provided with respect to the Certificates by the 1933 Act to be delivered in connection with sales rating agency or agencies that initially rate the Certificates is conditional upon the furnishing of Common Stockdocuments or the taking of any other actions by the Company or Holdings, will use its best efforts to cause a registration statement for the Common Stock to be effective Company or Holdings, as applicable, shall furnish such documents and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effectivetake any such other actions.
(j) For a period from the date of five years after this Agreement until the Closing Timeretirement of the Certificates, or until such time as the Company Underwriters shall cease to maintain a secondary market in the Certificates, whichever first occurs, Holdings will furnish deliver to the Underwriter copies Underwriters (i) the annual Servicer's Certificate, (ii) the annual independent certified public accountants' reports furnished to the Trustee, (iii) all documents required to be distributed to Certificateholders of the Trust and (iv) all annual reportsdocuments filed with the Commission pursuant to the Exchange Act or any order of the Commission thereunder, quarterly reports and current reports in each case as provided to the Trustee or filed by the Company with the Commission, as soon as such other documents, reports, proxy statements and information as shall be reports are furnished by to the Trustee or filed or, if an affiliate of the Company to its stockholders generallyis not the Servicer, and such other public information concerning the Bank or the Company as the Underwriter may reasonably requestsoon thereafter as practicable.
(k) The Company will provide to Between the holders date of the Common Stock annual reports containing financial statements audited by applicable Terms Agreement and the Company’s independent auditors and, upon written requestClosing Date or such other date as is set forth in such Terms Agreement, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issuesale of, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, Certificates set forth in such Terms Agreement or any securities convertible into or exercisable for shares ofsimilar securities, Common Stock other than as set forth in connection with any plan or arrangement described in the Prospectussuch Terms Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Partners First Receivables Funding Corp)
Certain Covenants of the Company. The Company covenants with the Underwriter you as follows:
(a) The Company has furnished or will use its best efforts furnish to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) you as many copies of the receipt of any comments Offering Memorandum, as it may then be amended or supplemented, as you may reasonably request from the Commission’s staff, (iii) of any request of the Commission’s staff time to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momenttime.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus Offering Memorandum (including other than amendments of the documents incorporated by reference into to the Registration Statement Offering Memorandum or the Prospectus) filing of subsequent documents under the 1934 Act), of which the Underwriter you shall not have previously have been advised and furnished a copy, or to which the Underwriter you or your counsel for the Underwriter shall reasonably object. The Company shall not file any document under the 1934 Act before the completion of the offering of the Securities by you, if such document would be deemed to be incorporated by reference in the Offering Memorandum and if the filing of such document would cause the Offering Memorandum, as amended or supplemented by the filing of such document, to contain an untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) The Company has furnished or will furnish If at any time prior to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act you to be delivered in connection with sales of the Securitiespurchasers who are not your affiliates, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter you or counsel for the Company, Company to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission and furnish you such number of copies as you may reasonably request. Except as otherwise required by the preceding sentence, the Company will not be obligated to update the Offering Memorandum. Such updating may be done by means of the filing of one or to make more documents under the Registration Statement or 1934 Act which are deemed incorporated by reference in the Prospectus comply with such requirementsOffering Memorandum.
(fd) The Company will use its best effortsNotwithstanding any provision of paragraph (b) or (c) to the contrary, in cooperation with however, the UnderwriterCompany's obligations under paragraphs (b) and (c) shall terminate on the earliest to occur of (i) the third anniversary of the Closing Time, (ii) the closing date of an Exchange Offer pursuant to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter may designate and to maintain such qualifications in effect for a period of not less than one year from Registration Rights Agreement, (iii) the effective date of the Registration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.Shelf
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter as followshereby agrees:
(a) The Company will use its best efforts to cause prepare the Registration Statement to become effective Final Memorandum in a form approved by the Initial Purchasers and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, make no amendment or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of Final Memorandum to which the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentInitial Purchasers reasonably object.
(b) The Promptly, from time to time, the Company will not at any time file or make any amendment take such action as the Initial Purchasers may reasonably request to qualify the Registration Statement orNotes and the Shares for offering and sale under the securities laws of such jurisdictions as the Initial Purchasers may request and will comply with such laws so as to permit the continuance of sales and dealing therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided, if that in connection therewith the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished be required to qualify as a copyforeign corporation, to file a general consent to service of process or subject itself to which the Underwriter any tax in any such jurisdiction where it is not now so qualified or counsel for the Underwriter shall reasonably objectsubject.
(c) The Company has furnished or will furnish to the Underwriter Initial Purchasers with as many signed and conformed copies of the Registration Statement as originally filed Final Memorandum, any documents incorporated by reference therein and of each any amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts supplement thereto as the Underwriter Initial Purchasers may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents if, at any time prior to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution resale of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required Notes by the 1933 Act to be delivered in connection with sales of the SecuritiesInitial Purchasers, any event shall occur or condition exist have occurred as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Final Memorandum as then amended or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not supplemented would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time it under which they were made when such Final Memorandum is delivered to a purchaserdelivered, or not misleading, or, if for any other reason it shall be necessary, in the reasonable opinion of either necessary or desirable during such counsel, at any such time same period to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act RegulationsFinal Memorandum, the Company will promptly notify the Initial Purchasers and upon the request of the Initial Purchasers will prepare and file with furnish without charge to the Commission, subject Initial Purchasers and to Section 3(b) hereof, such amendment any dealer in securities as many copies as the Initial Purchasers may from time to time reasonably request of an amended Final Memorandum or a supplement as may be necessary to the Final Memorandum which will correct such untrue statement or omission or effect such compliance.
(d) During the period beginning from the date hereof and continuing until the date 90 days after the date of the Final Memorandum, the Company will not, without the prior written consent of Xxxxxx Xxxxxxx issue, offer, sell, contract to make sell, hypothecate, pledge, grant or sell any option, right or warrant to purchase, or otherwise dispose of, or contract to dispose of, any Shares, any securities substantially similar to the Registration Statement Notes or the Prospectus comply with Common Stock, any securities that are convertible into or exchangeable for shares of Common Stock and any debt securities or any securities that are convertible into or exchangeable for the Notes or such requirementsother debt securities, or file or cause to be declared effective a registration statement under the Securities Act relating to the offer and sale of any Shares, any securities substantially similar to the Notes or the Common Stock, any securities that are convertible into or exchangeable for shares of Common Stock and debt securities or any securities that are convertible into or exchangeable for the Notes or such other debt securities (other than (i) the issuance of the Notes; (ii) the issuance of Shares upon conversion of the Notes; (iii) the issuance of shares of Common Stock upon conversion or exercise of convertible or exercisable or exchangeable securities outstanding as of the date of this Agreement or (iv) the issuance of shares of Common Stock or options pursuant to employee stock option or employee stock purchase plans existing on, or upon exercise of warrants outstanding as of, the date of this Agreement), or enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or Notes irrespective of whether any transaction mentioned above is to be settled by delivery of the Common Stock, the Notes or other securities, in cash or otherwise.
(e) At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and so long as any of the Notes (or Shares issued upon conversion thereof) are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, for the benefit of holders from time to time of the Notes, the Company will furnish at its expense, upon request, to holders and beneficial owners of Notes and prospective purchasers of Notes information satisfying the requirements of subsection (d)(4)(i) of Rule 144A.
(f) The Company will use its best efforts, efforts to cause the Notes to be eligible for trading in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not 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 Securities have been qualified as above providedPORTAL.
(g) The For so long as the Notes remain outstanding, the Company will make generally available, within furnish to the meaning Initial Purchasers copies of Rule 158 all reports or other communications (financial or other) furnished to stockholders of the 1933 Act Regulations Company, and will deliver, or make available via the Commission’s Electronic Data, Gathering, Analysis and Retrieval (“Rule 158”)XXXXX) System, to the holders of the Securities and the Underwriter Initial Purchasers (i) as soon as practicablethey are available, but not later than 90 days after copies of any reports and financial statements furnished to or filed by the close Company with the Commission or any securities exchange on which the Notes or any class of securities of the period covered thereby, an earnings statement Company is listed; and (ii) such additional public information concerning the business and financial condition of the Company as the Initial Purchasers may from time to time reasonably request (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its subsidiaries (in form complying with stockholders generally or to the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective dateCommission).
(h) The Company will use the net proceeds received by it from the sale of the Securities Notes pursuant to this Agreement in the manner specified in the Prospectus Preliminary Memorandum and the Final Memorandum under the caption “Use of Proceeds.”
(i) The CompanyCompany will reserve and keep available at all times free of preemptive rights, during Shares for the period when a prospectus is required by purpose of enabling the 1933 Act Company to be delivered in connection with sales satisfy any obligations to issue Shares upon conversion of Common Stock, the Notes.
(j) The Company will use its best efforts to cause a list, as promptly as practicable but in no event later than the time that the registration statement for the Common Stock to be is declared effective and will file promptly all documents required to be filed in accordance with the Commission pursuant Registration Rights Agreement, and subject to Section 13 and 14 notice of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Timeissuance, the Company will furnish to Shares on the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably requestNew York Stock Exchange.
(k) The Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will provide pay or cause to be paid all expenses incident to the holders performance of its obligations under this Agreement, including, without limitation, (i) the Common Stock annual reports containing financial statements audited by fees, disbursements and expenses of the Company’s independent auditors and, upon written request, counsel and the Company’s annual reports accountants in connection with the issuance and sale of the Notes and all other fees and expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the furnishing of copies thereof to the Initial Purchasers and to dealers (including costs of mailing and shipment), (ii) all costs related to the preparation, issuance, execution, authentication and delivery of the Notes and the Shares, (iii) all costs related to the transfer and delivery of the Notes to the Initial Purchasers, including any transfer or other taxes payable thereon, (iv) all expenses in connection with the qualification of the Notes and the Shares for offering and sale under state laws and the cost of printing and furnishing of copies of any blue sky or legal investment memorandum to the Initial Purchasers and to dealers (including filing fees and the fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with such blue sky or legal investment memorandum), (v) any fees payable to investment rating agencies with respect to the rating of the Notes, (vi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vii) the fees and expenses, if any, incurred in connection with the admission of the Notes for trading in PORTAL or any appropriate market system, (viii) the costs and expenses of the Company relating to investor presentations on Form 10-K or Form 10-KSBany “road show” undertaken in connection with the marketing of the offering of the Notes, as applicableincluding, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (ix) all other costs and expenses incident to the performance of the Company’s obligations hereunder for which provision is not otherwise made in this Section 5(k).
(l) The Neither the Company nor any Affiliate will file sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with Nasdaq all documents the sale of the Notes in a manner which would require the registration under the Securities Act of the offer and notices required by Nasdaq sale of companies that have issued securities that are quoted on the Nasdaq National MarketNotes pursuant to this Agreement.
(m) The Company shall cause will not solicit any offer to be prepared buy or offer or sell the Notes or the Shares by its counsel one means of any form of general solicitation or more “blue sky” surveys general advertising (each, as those terms are used in Regulation D) or in any manner involving a “Blue Sky Survey”public offering within the meaning of Section 4(2) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the UnderwriterAct.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date at any time at or thirty (30) days after the date execution of this Agreement, whichever occurs firstdirectly or indirectly, incur offer or sell any Notes by means of, or use, in connection with the offer or sale of the Notes, any material liability or obligationcommunication that would, direct or contingentassuming the Notes were to be offered publicly, or enter into any material transactionconstitute a “prospectus” (within the meaning of the Securities Act), in each case other than in the ordinary course Final Memorandum.
(o) During the period after the time of businesspurchase or the additional time of purchase, if later, the Company will not, and will not permit Affiliates, to resell any of the Notes or the Shares which constitute “restricted securities” under Rule 144 under the Securities Act that have been reacquired by any transaction with a related party which is required to be disclosed in the Prospectus of them except pursuant to Item 404 of an effective registration statement under the Securities Act.
(p) Neither the Company nor any Affiliate will take any action prohibited by Regulation S-K (or Regulation S-B, as applicable) M under the Exchange Act in connection with the distribution of the Commission, except as Notes contemplated by the Prospectushereby.
(q) The Company and each Principal Subsidiary will not sell or issuecomply in all material respects with all applicable securities and other laws, contract rules and regulations, including without limitation, the Xxxxxxxx-Xxxxx Act, and use its best efforts to sell or issue, or otherwise dispose of, for a period of 180 days after cause the Closing Time, without the prior written consent officers and directors of the UnderwriterCompany and each Principal Subsidiary, any shares ofas the case may be, or any securities convertible into or exercisable for shares ofin their capacities as such, Common Stock other than in connection to comply with any plan or arrangement described in such laws, rules and regulations, including without limitation, the Prospectusprovisions of the Xxxxxxxx-Xxxxx Act.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) (i) If reasonably requested by you in connection with the offering of the Debt Securities, the Company will prepare a preliminary prospectus supplement containing such information concerning the Debt Securities as you and the Company deem appropriate and (ii) promptly following the execution of each Terms Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the principal amount of Debt Securities covered thereby, the names of the Underwriters participating in the offering and the principal amount of Debt Securities which each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connection with the offering, the price at which the Debt Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information concerning the Debt Securities as you and the Company deem appropriate in connection with the offering of the Debt Securities. The Company will use its best efforts promptly transmit copies of the Prospectus Supplement to cause the Registration Statement Commission for filing pursuant to become effective Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any preliminary prospectus supplement, the Prospectus and the Prospectus Supplement as you shall reasonably request. If the Company elects to rely on Rule 434 under the 1933 Act Regulations, the Company will prepare an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations (a “Rule 434 Prospectus”) and will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the business day immediately succeeding the date of the applicable Terms Agreement.
(b) The Company will notify the Underwriter each of you immediately, and confirm the notice in writing, (i) when of the effectiveness of the Registration Statement, or Statement and any amendment thereto (including any post-effective amendment amendment), (ii) of the mailing or the delivery or EXXXX transmission to the Registration Statement, shall have become effective, or Commission for filing of any supplement to the Prospectus or any amended Prospectus shall have been fileddocument to be filed pursuant to the 1934 Act, (iiiii) of the receipt of any comments from the Commission’s staff, (iiiiv) of any request of by the Commission’s staff Commission for any amendment to amend the Registration Statement or amend any amendment or supplement to the Prospectus or for additional information information, and (ivv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening initiation of any proceedings for any of such purposesthat purpose. The Company will use make every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time give you notice of its intention to file or make prepare any amendment to the Registration Statement or(including any filing under Rule 462(b)), if any Term Sheet or any amendment, supplement or revision to the Company has elected Prospectus, whether pursuant to rely upon Rule 430A of the 1934 Act, the 1933 Act Regulations (“Rule 430A”)or otherwise, and will furnish you with copies of any such amendment or supplement or other document proposed to the Prospectus (including documents incorporated by reference into the Registration Statement be filed a reasonable amount of time prior to such proposed filing and will not file any such amendment or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, supplement or other document or use any such prospectus to which the Underwriter you or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver to you as many signed copies of the registration statement as originally filed and of each amendment thereto (including exhibits filed therewith or cause incorporated by reference therein) as you may reasonably request and will also deliver to be delivered to the Underwriter, without charge, from time to time until the effective date you a conformed copy of the Registration Statement, as many Statement and of each amendment thereto for each of the Underwriters. The copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (orand each amendment thereto furnished to the Underwriters will be substantively identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, if except to the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested extent permitted by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.Regulation S-T.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, If at any time when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Debt Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or 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 a any material fact necessary in order to make the statements therein not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, purchaser or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend or supplement the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement supplement, whether by documents pursuant to the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1000 Xxx.
(g) The Company will use its best effortsendeavor, in cooperation with the UnderwriterUnderwriters, to qualify the Debt Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 Statementdesignate; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or and will not be obligated to subject itself execute a general consent to taxation in respect service of doing business process in any state. In each jurisdiction in which it is not otherwise the Debt Securities have been so subject. The qualified, the Company will file such statements and reports as may be required by the laws of each such jurisdiction to continue such qualification in which effect for as long as may be required for the distribution of the Debt Securities. The Company will promptly advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Debt Securities have been qualified as above providedfor sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such purpose.
(gh) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regulations) covering a twelve month period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such the “effective date.
” (has defined in said Rule 158) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of ProceedsRegistration Statement.”
(i) The CompanyIf and to the extent specified in the applicable Terms Agreement, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, Company will use its best efforts to cause a registration statement for effect the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 listing of the 1934 Act subsequent Debt Securities on the New York Stock Exchange by the Closing Time with respect to the time the Registration Statement becomes effectiveapplicable Terms Agreement.
(j) For a such period of five years after time as is specified in the Closing Timeapplicable Terms Agreement, commencing on the date of such Terms Agreement, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, directly or indirectly, sell, offer to sell, grant any shares option for the sale of, or any securities convertible into or exercisable for shares otherwise dispose of, Common Stock other than any Debt Securities.
(k) The Company will remain in connection compliance in all material respects with any plan or arrangement described all applicable provisions of the Sxxxxxxx-Xxxxx Act as in effect from time to time and will use its commercially reasonable efforts to cause the ProspectusCompany’s directors and officers, in their capacity as such, to comply with the applicable provisions of the Sxxxxxxx-Xxxxx Act.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The Company will use its best efforts If, during such period after the first date of the public offering of the Securities as, in the opinion of counsel for the Underwriters, the Prospectus (or in lieu thereof the notice referred to cause in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales of the Shares by an underwriter or dealer, any event shall occur or condition shall exist as a result of which it is necessary to amend or supplement the Registration Statement or the Prospectus in order to become effective and will notify make the Underwriter immediatelystatements therein, and confirm in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in writingRule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Registration Statement or Prospectus to comply with applicable law, the Company shall forthwith prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (iwhose names and addresses the Representatives will furnish to the Company) to which Securities may have been sold by the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Registration Statement or Prospectus as amended or supplemented, will comply with applicable law.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus in a manner that would affect the offering of the Shares, to furnish to the Underwriters a copy of each such proposed amendment or supplement and not to file any post-effective such proposed amendment or supplement to which the Underwriters reasonably object; provided that, if in the opinion of counsel to the Company, any such amendment or supplement shall be required by law or regulation to be filed, that the Company shall be permitted to make such filing after taking into account such comments as the Underwriters and their counsel may reasonably make on the content, form or other aspects of such proposed amendment or supplement; and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such rule.
(c) To furnish to the Underwriters, upon request, without charge, a signed copy of the Registration Statement (including exhibits thereto) and to deliver to the
(d) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, shall have become effective(ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(be) The Company will Promptly following the execution of this Agreement, to prepare a Prospectus that complies with the Securities Act and that sets forth the terms of the offering not at any time file or make any amendment otherwise specified in the preliminary prospectus, the name of each Underwriter and the number of Shares that each severally has agreed to purchase, the Registration Statement orname of each Underwriter, if the Company has elected to rely upon Rule 430A any, acting as representative of the 1933 Act Regulations (“Rule 430A”)Underwriters in connection with the offering, the price at which the Shares are to be purchased by the Underwriters from the Company, any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised initial public offering price, any selling concession and furnished a copyreallowance and any delayed delivery arrangements, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts such other information as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, Underwriters and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActSecurities. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as Commission for filing pursuant to permit the completion of the distribution of Rule 424 under the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirementsAct.
(f) The To furnish to the Underwriters a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company will and not to use its best effortsor refer to any proposed free writing prospectus to which the Underwriters reasonably object; provided that, if in cooperation with the Underwriteropinion of counsel to the Company, any such free writing prospectus shall be required by law or regulation to be used, that the Company shall be permitted to use such free writing prospectus after taking into account such comments as the Underwriters and their counsel may reasonably make on the content, form or other aspects of such proposed free writing prospectus.
(h) To take all reasonable actions to qualify the Securities Shares for offering offer and sale under the applicable securities or Blue Sky laws of such states and other jurisdictions as the Underwriter may designate Underwriters shall reasonably request and to endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Shares; provided, however, provided that the Company shall not be obligated required to register as a foreign corporation or 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 Securities have been qualified as above providedadditional taxation.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(ja) For a period of five years 90 days after the Closing TimeDate, the Company will furnish not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the Underwriter copies Commission a registration statement under the Securities Act relating to, any shares of all annual reportsCommon Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than any registration statement on Form S-8 or any successor forms thereto, quarterly reports and current reports filed by or relating solely to any of the Company with employee benefit plans of the CommissionCompany, such as described in the Time of Sale Prospectus), or publicly disclose the intention to undertake any of the foregoing, or (ii) enter into any swap or other documentsagreement that transfers, reportsin whole or in part, proxy statements and information as shall be furnished by any of the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders economic consequences of ownership of the Common Stock annual reports containing financial statements audited by or any such other securities or publicly disclose the Company’s independent auditors andintention to undertake any of the foregoing, upon written request, the Company’s annual reports on Form 10-K whether any such transaction described in clause (i) or Form 10-KSB, as applicable.
(lii) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause above is to be prepared settled by its counsel one delivery of Common Stock or more “blue sky” surveys (eachsuch other securities, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey cash or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Timeotherwise, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the ProspectusRepresentatives.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(hf) The To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the net proceeds received by it from the sale authorization of the Offered Securities in for listing on the manner listing exchange as specified in the Prospectus under applicable Final Term Sheet as soon as reasonably practicable.
(g) If the caption “Use of Proceeds.”Offered Securities include Debt Securities, the Company also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 3(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the holders Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectusv) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(oh) If the Offered Securities include Shares, the Company also covenants with you and each Underwriter as follows:
(i) The Company will not while the completion of the distribution of such Offered Securities is pending, file or make any amendment to the Registration Statement or the ADS Registration Statement, or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement and the ADS Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement or the ADS Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement and the ADS Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1934 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will promptly prepare and file with the Commission, subject to Section 3(h)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement, the ADS Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, at its expensewhile the completion of the distribution of any Offered Shares is pending, subsequent notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement or the ADS Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the ADS Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or the ADS Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(pv) The Company will not, prior comply with the Deposit Agreement so that ADRs evidencing any ADSs representing Offered Shares will be executed and delivered by the Depositary to the Option Underwriters at the applicable Closing Time or Date or thirty (30) days after of Delivery as the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectuscase may be.
(qi) The Company will not sell Notwithstanding any other term of the Terms Agreement or issueany other agreements, contract to sell or issuearrangements, or otherwise dispose ofunderstandings between the Company and each Underwriter, the Company acknowledges, accepts, and agrees, to the extent applicable, to be bound by:
(1) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of a party, that may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion of the BRRD Liability into shares, other securities or other obligations of a party or another person (and the issue to or conferral on the other party or parties of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the Terms Agreement;
(iii) the cancellation of the BRRD Liability;
(iv) the amendment or alteration of the amounts due, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a period of 180 days after temporary period; and
(2) the Closing Time, without the prior written consent variation of the Underwriterterms of any Terms Agreement if necessary by the Relevant Resolution Authority, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than to give effect to the exercise of the Bail-in connection with any plan or arrangement described in Powers by the ProspectusRelevant Resolution Authority.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(hf) To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the authorization of the Offered Securities for listing on the listing exchange specified in the applicable Final Term Sheet as soon as reasonably practicable.
(g) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 3(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Securities is pending, notify each of you promptly, and confirm the notice in writing, of (a) the effectiveness of any amendment to the holders Registration Statement, (b) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (c) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (d) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectuse) containing all information so omitted.
(o) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will, at its expense, subsequent will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter you as follows:
(a) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, not at any time make any amendment or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus Offering Memorandum of which you shall not have previously been advised and furnished a copy or any amended Prospectus to which you or your counsel shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentreasonably object.
(b) The Company will not at any time file or make any amendment promptly deliver to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriteryou, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when from the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply date hereof to the best date of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities by you, such number of copies of the Offering Memorandum, as contemplated in this Agreement and in it may then be amended or supplemented, or the Prospectus. Preliminary Offering Memorandum, as it may then be amended or supplemented, as you may reasonably request.
(c) If, at any time when a prospectus is required by the 1933 Act prior to be delivered in connection with sales completion of the Securitiesdistribution of the Securities by you, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of your counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleadingtherein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessaryif, in the reasonable opinion of either such counselyour counsel or counsel for the Company, at any such time it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order Offering Memorandum to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company Company, at its own expense, will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to correct a purchaser, be misleading or so that such untrue statement Offering Memorandum as so amended or omission or to make the Registration Statement or the Prospectus supplemented will comply with applicable law, as the case may be, and furnish you such requirementsnumber of copies as you may reasonably request.
(fd) The Company will use its best effortsendeavor, in cooperation with the Underwriteryou, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one a year from the effective date of the Registration StatementOffering Memorandum; providedPROVIDED, howeverHOWEVER, that the Company shall not 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 - 12 - the laws of each jurisdiction in which the Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdictions as you may request.
(e) Except following the effectiveness of the Registration Statement, neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of Regulation D) will solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising (within the meaning of Rule 502(C) of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the 1933 Act.
(f) Neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of the 1933 Act) will offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the 1933 Act) the offering of which security could be integrated with the sale of the Securities in a manner that would require the registration of any of the Securities under the 1933 Act. With respect to those Securities sold in reliance upon Regulation S, none of the Company, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no representation or warranty) has engaged or will engage in any directed selling efforts within the meaning of Regulation S and each of the Company, its Affiliates and any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no representation or warranty) has complied and will comply with the offering restrictions set forth in Regulation S.
(g) The Company will make generally availablenot be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under the 1940 Act, and will not be or become a closed-end investment company required to be registered, but not registered, thereunder.
(h) During the period from the Closing Time to the earlier of (i) two years after the Closing Time or (ii) the date of effectiveness of the Registration Statement, the Company will not, and will not permit any of its affiliates (as such term is defined in Rule 144 under the 1933 Act) to, resell any of the Securities that have been reacquired thereby, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the 1933 Act.
(i) The Company will, so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 158 144(a)(3) under the 1933 Act, either (i) file reports and other information with the Commission under Section 13 or Section 15(d) of the 1933 Act Regulations 1934 Act, or (“Rule 158”)ii) in the event the Company is not subject to Section 13 or Section 15(d) of the 1934 Act, furnish to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale prospective purchasers of the Securities in designated by such holders, upon request of such holders or such prospective purchasers, the manner specified in the Prospectus information required to be delivered pursuant to Rule 144A(d)(4) under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered permit compliance with Rule 144A in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 resale of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) Securities. For a period of five years after the Closing Time, the Company will furnish make available to the Underwriter you upon request copies of all annual reports, quarterly such reports and current reports filed by the Company information, together with the Commission, such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generallythe holders of the Securities issued by it unless they are available through the Electronic Data Gathering, Analysis and such other public information concerning the Bank or Retrieval System.
(j) If requested by you, the Company as will use its best efforts in cooperation with you to permit the Underwriter may reasonably requestSecurities sold in transactions described in Section 2(d)(ii) hereof to be eligible for clearance and settlement through The Depository Trust Company.
(k) The Company will provide purchaser understands that the notes will, until the expiration of the applicable holding period with respect to the holders notes set forth in Rule 144(k) of the Common Stock annual reports containing financial statements audited Securities Act, unless otherwise agreed to by BE Aerospace, Inc. and the Company’s independent auditors andholder thereof, upon written requestbear a legend substantially to the following effect: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, the Company’s annual reports on Form 10-K or Form 10-KSBAS AMENDED (THE "SECURITIES ACT"), as applicableOR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A. UNDER THE SEUCRITIES ACT ("RULE 144A") TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF AVAILABLE) OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
(l) The Company will file apply the net proceeds that it receives from the offer and sale of the Securities issued by it in the manner set forth with Nasdaq all documents and notices required by Nasdaq respect to it in the Offering Memorandum under the heading "Use of companies that have issued securities that are quoted on the Nasdaq National MarketProceeds."
(m) The Prior to the Closing Time, the Company shall cause will not issue any press release or other communications directly or indirectly or hold any press conference with respect to be prepared by its counsel one the Company, the condition, financial or more “blue sky” surveys (eachotherwise, a “Blue Sky Survey”) for use in connection with or the offering earnings, business affairs or business prospects of the Securities as contemplated by Company, without your prior consent, which shall not be unreasonably withheld, unless in the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each judgment of the Company and the Underwriterits counsel, and after notification to you, such press release or communication is required by law.
(n) If, at For a period of 120 days from the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance date of the SecuritiesOffering Memorandum, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, without your prior to written consent, directly or indirectly, offer, pledge, sell, grant any option, right or warrant for the Option Closing Date or thirty (30) days after the date sale of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent any debt securities of the Underwriter, any shares of, Company (or any securities convertible or exchangeable into or exercisable for shares ofdebt securities of the Company), Common Stock or file any registration statement with respect to the foregoing, other than in connection with any plan the Securities or arrangement described the Exchange Securities referred to in the ProspectusRegistration Rights Agreement.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter as followshereby agrees that:
(a) The Company will use its best efforts to cause prepare the Registration Statement to become effective Final Memorandum in a form approved by the Initial Purchaser and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, make no amendment or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus Final Memorandum which shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance reasonably be disapproved by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every Initial Purchaser promptly after reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.notice thereof;
(b) The Company will not at any time file furnish such information and take such other actions as the Initial Purchaser may reasonably request to qualify the Notes and the Shares for offering and sale under the securities or make any amendment to blue sky laws of such jurisdictions as the Registration Statement or, if Initial Purchaser may designate and will maintain such qualifications in effect so long as required for the distribution of the Notes; PROVIDED that in connection therewith the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished be required to qualify as a copyforeign corporation, to file a general consent to service of process or subject itself to which the Underwriter any tax in any such jurisdiction where it is not now so qualified or counsel for the Underwriter shall reasonably object.subject;
(c) The Company has furnished or will furnish to the Underwriter Initial Purchaser with as many signed and conformed copies of the Registration Statement as originally filed Final Memorandum, any documents incorporated by reference therein and of each any amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts supplement thereto as the Underwriter Initial Purchaser may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents if, at any time prior to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution resale of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required Notes by the 1933 Act to be delivered in connection with sales of the SecuritiesInitial Purchaser, any event shall occur or condition exist have occurred as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Final Memorandum as then amended or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not supplemented would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time it under which they were made when such Final Memorandum is delivered to a purchaserdelivered, or not misleading, or, if for any other reason it shall be necessary, in the reasonable opinion of either necessary or desirable during such counsel, at any such time same period to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act RegulationsFinal Memorandum, the Company will promptly notify the Initial Purchaser and upon the request of the Initial Purchaser will prepare and file with furnish without charge to the Commission, subject Initial Purchaser and to Section 3(b) hereof, such amendment any dealer in securities specified by the Initial Purchaser as many copies as the Initial Purchaser may from time to time reasonably request of an amended Final Memorandum or a supplement as may be necessary to the Final Memorandum which will correct such untrue statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and continuing until the date 90 days after the date of the Final Memorandum (the "LOCK-UP PERIOD"), the Company will not, without the prior written consent of UBS Warburg LLC, issue, offer, sell, contract to make sell, pledge or otherwise dispose of, or contract to dispose of, any Shares, any securities substantially similar to the Registration Statement Notes or the Prospectus comply with Common Stock or any securities that are convertible into or exchangeable for shares of Common Stock (other than (i) the issuance of the Notes; (ii) the issuance of Shares upon conversion of the Notes; (iii) the issuance of shares of Common Stock upon conversion or exercise of convertible or exercisable or exchangeable securities outstanding as of the date of this Agreement or (iv) the issuance of shares of Common Stock or options pursuant to employee stock option or employee stock purchase plans existing on, or upon exercise of warrants outstanding as of, the date of this Agreement). During the first 45 days of the Lock-up Period, the Initial Purchaser may withhold its consent to the actions described in this Section 5(d) for any reason or for no reason. If after the expiration of the first 45 days of the Lock-up Period, the average last reported sales price of the Common Stock on the Nasdaq National Market for any five consecutive trading days equals or exceeds $10.20 per share (adjusted for any stock split, combination or similar transaction), then the Initial Purchaser may not thereafter withhold its consent to such requirements.actions unreasonably;
(e) At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and so long as any of the Notes (or Shares issued upon conversion thereof) are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, for the benefit of holders from time to time of the Notes, the Company will furnish at its expense, upon request, to holders of Notes and prospective purchasers of Notes information satisfying the requirements of subsection (d)(4)(i) of Rule 144A;
(f) The Company will use its reasonable best efforts, efforts to cause the Notes to be eligible for trading in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not 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 Securities have been qualified as above provided.PORTAL;
(g) The For so long as the Notes remain outstanding, the Company will make generally available, within furnish to the meaning Initial Purchaser (i) copies of Rule 158 all reports or other communications (financial or other) furnished to stockholders of the 1933 Act Regulations (“Rule 158”)Company, and will deliver to the holders of the Securities and the Underwriter Initial Purchaser (ii) as soon as practicableis reasonably practical after they are available, but not later than 90 days after (A) copies of any annual, quarterly or current reports furnished to or filed by the close Company with the Commission on Forms 10-K, 10-Q and 8-K or such similar forms as are designated by the Commission, and (B) copies of documents or reports filed with any securities exchange on which the period covered thereby, an earnings statement Notes or any class of securities of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.is listed;
(h) The Company will use the net proceeds received by it from the sale of the Securities Notes pursuant to this Agreement in the manner specified in the Prospectus Final Memorandum under the caption “"Use of Proceeds.”";
(i) The CompanyCompany will reserve and keep available at all times, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales free of Common Stockpreemptive rights, will use its best efforts to cause a registration statement Shares for the Common Stock purpose of enabling the Company to be effective and will file promptly all documents required satisfy any obligations to be filed with the Commission pursuant to Section 13 and 14 issue Shares upon conversion of the 1934 Act subsequent to the time the Registration Statement becomes effective.Notes;
(j) For a period The Company will use its reasonable best efforts to list, as promptly as practicable but in no event later than the time that the registration statement is declared effective in accordance with the Registration Rights Agreement, and subject to notice of five years after issuance, the Closing TimeShares on the NASDAQ National Market;
(k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will furnish pay or cause to be paid all expenses incident to the Underwriter performance of its obligations under this Agreement, including, without limitation, (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the issuance and sale of the Notes and all other fees and expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the furnishing of copies thereof to the Initial Purchaser and to dealers (including costs of mailing and shipment), (ii) all costs related to the preparation, issuance, execution, authentication and delivery of the Notes and the Shares, (iii) all costs related to the transfer and delivery of the Notes to the Initial Purchaser, including any transfer or other taxes payable thereon, (iv) reproduction and/or printing and furnishing copies of this Agreement, the Registration Rights Agreement, the Indenture, the Pledge Agreement and the Control Agreement to the Initial Purchaser and (except closing documents) to dealers (including costs of mailing and shipment), (v) all annual reportsexpenses in connection with the qualification of the Notes and the Shares for offering and sale under state laws and the cost of printing and furnishing of copies of any blue sky or legal investment memorandum to the Initial Purchaser and to dealers (including filing fees and the fees and disbursements of counsel for the Initial Purchaser in connection with such qualification and in connection with such blue sky or legal investment memorandum), quarterly reports (vi) the costs and current reports filed by charges of the Trustee and any transfer agent, registrar or depositary, (vii) the fees and expenses, if any, incurred in connection with the admission of the Notes for trading in PORTAL or any appropriate market system, (viii) the costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the Commissionmarketing of the offering of the Notes, such other documentsincluding, reportswithout limitation, proxy statements expenses associated with the production of road show slides and information as shall be furnished by graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company to its stockholders generallyand any such consultants, and such the cost of any aircraft chartered in connection with the road show, and (ix) all other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide cost and expenses incident to the holders performance of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.'s obligations hereunder for which provision is not otherwise made in this Section 5(k);
(l) The Neither the Company nor any Affiliate (other than Elan and its subsidiaries) will, and the Company will file use its commercially reasonable efforts to cause Elan and its subsidiaries not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with Nasdaq all documents and notices required by Nasdaq the sale of companies that have issued securities that are quoted on the Nasdaq National Market.Notes in a manner which would require the registration under the Securities Act of the Notes;
(m) The Company shall cause will not to be prepared solicit any offer to buy or offer or sell the Notes or the Shares by its counsel one means of any form of general solicitation or more “blue sky” surveys general advertising (each, as those terms are used in Regulation D) or in any manner involving a “Blue Sky Survey”public offering within the meaning of Section 4(2) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.Act;
(n) If, at During the period of two years after the time of purchase or the Registration Statement becomes effectiveadditional time of purchase, any information shall have been omitted therefrom in reliance upon Rule 430Aif later, then the Company will preparenot, and file or transmit for filing with will not permit any of its affiliates (as defined in Rule 144 under the Commission in accordance with Rule 430A and Rule 424(bSecurities Act ("RULE 144")), copies other than Elan and its subsidiaries, to, and will use its commercially reasonable efforts to cause Elan and its subsidiaries not to, resell any of the Notes or the Shares which constitute "restricted securities" under Rule 144 that have been reacquired by any of them except pursuant to an amended Prospectus or, if required by Rule 430A, a post-effective amendment to registration statement under the Registration Statement (including an amended Prospectus) containing all information so omitted.Securities Act;
(o) The Company will, at its expense, subsequent to will not take any action prohibited by Regulation M under the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used Exchange Act in connection with the issuance distribution of the Securities.Notes contemplated hereby;
(p) The Without the prior written consent of the Initial Purchaser, the Company will notnot waive any provision of , prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) and will fully enforce all of the Commissionprovisions of, except as contemplated Sections 2.7 and 3.6 of the Securities Purchase Agreement by and among the Prospectus.Company, Elan International Services, Ltd. and Elan Corporation plc, dated November 12, 2002; and
(q) The Company will not sell or issue, contract pledge to sell or issue, or otherwise dispose ofthe Trustee, for a period of 180 days after the Closing Time, without the prior written consent exclusive and ratable benefit of the Underwriterholders of the Notes, any shares ofand grant to the Trustee a security interest and continuing lien in all of the Company's right, or any securities convertible into or exercisable for shares of, Common Stock other than title and interest in connection with any plan or arrangement described and to the Collateral (as defined in the ProspectusPledge Agreement) on the terms and in the manner set forth in the Pledge Agreement.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(hf) The To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the net proceeds received by it from the sale authorization of the Offered Securities in for listing on the manner listing exchange as specified in the Prospectus under applicable Final Term Sheet as soon as reasonably practicable.
(g) If the caption “Use of Proceeds.”Offered Securities include Debt Securities, the Company also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 4(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the holders Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectusv) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(oh) If the Offered Securities include Shares, the Company also covenants with you and each Underwriter as follows:
(i) The Company will not while the completion of the distribution of such Offered Securities is pending, file or make any amendment to the Registration Statement or the ADS Registration Statement, or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement and the ADS Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement or the ADS Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement and the ADS Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1934 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will promptly prepare and file with the Commission, subject to Section 4(h)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement, the ADS Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, at its expensewhile the completion of the distribution of any Offered Shares is pending, subsequent notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement or the ADS Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the ADS Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or the ADS Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(pv) The Company will not, prior comply with the Deposit Agreement so that ADRs evidencing any ADSs representing Offered Shares will be executed and delivered by the Depositary to the Option Underwriters at the applicable Closing Time or Date or thirty (30) days after of Delivery as the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectuscase may be.
(qi) The Company will not sell Notwithstanding any other term of the Terms Agreement or issueany other agreements, contract to sell or issuearrangements, or otherwise dispose ofunderstandings between the Company and each Underwriter, the Company acknowledges, accepts, and agrees, to the extent applicable, to be bound by:
(1) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of a party, that may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion of the BRRD Liability into shares, other securities or other obligations of a party or another person (and the issue to or conferral on the other party or parties of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the Terms Agreement;
(iii) the cancellation of the BRRD Liability;
(iv) the amendment or alteration of the amounts due, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a period of 180 days after temporary period; and
(2) the Closing Time, without the prior written consent variation of the Underwriterterms of any Terms Agreement if necessary by the Relevant Resolution Authority, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than to give effect to the exercise of the Bail-in connection with any plan or arrangement described in Powers by the ProspectusRelevant Resolution Authority.
Appears in 1 contract
Certain Covenants of the Company. The In further consideration of the -------------------------------- agreements of the Underwriters contained in this Agreement, the Company covenants with the Underwriter as follows:
(a) The Company will use its best efforts to cause To furnish the Registration Statement to become effective and will notify the Underwriter immediatelyManagers, and confirm the notice in writingwithout charge, (i) when as many copies of the Registration Statement, including exhibits and materials, if any, incorporated by reference therein and, during the period mentioned in paragraph (c) below, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or any post-effective amendment to the Registration Statement, shall have become effective, as the Managers may reasonably request. The terms "supplement" and "amendment" or any supplement "amend" as used in this Agreement with respect to the Registration Statement, Prospectus or any amended Prospectus preliminary prospectus shall have been filed, (ii) include all documents filed by the Company with the Commission subsequent to the date of the receipt of any comments from the Commission’s staffBasic Prospectus, (iii) of any request of the Commission’s staff pursuant to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale Exchange Act of 1934, as amended (the "Exchange Act"), which are deemed to be incorporated by reference in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus.
(b) The Company will not at any time file Before amending or make any amendment to supplementing the Registration Statement or(or filing the Rule 462 (b) Registration Statement, if applicable) or the Company has elected Prospectus with respect to rely upon Rule 430A the Debt Securities, to furnish the Managers a copy of the 1933 Act Regulations (“Rule 430A”), each such proposed amendment or supplement and not to file any such proposed amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall Managers reasonably objectobject promptly after reasonable notice thereof.
(c) The Company has furnished or will furnish to If, during such period after the Underwriter as many signed and conformed copies commencement of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date public offering of the Registration Statement, Debt Securities as many copies in the opinion of each preliminary prospectus as counsel for the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when Underwriters the Prospectus is required by law to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securitiesrespect thereto, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not as then amended or supplemented would include an any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time it is delivered to a purchaserthen existing, not misleading, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to comply with law, forthwith at its own expense, to amend or to supplement the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare Prospectus and file with the Commission, subject to Section 3(b) hereof, furnish such amendment or supplement to the Underwriters, so as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with effect such requirementscompliance.
(fd) The Company will use its best efforts, in cooperation with the Underwriter, to To qualify the Debt Securities for offering offer and sale under the applicable securities or Blue Sky laws of such states and other jurisdictions as the Underwriter may designate Managers shall reasonably request and to maintain pay all reasonable expenses (including fees and disbursements of counsel) in connection with such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above providedqualification.
(ge) The Company will To make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the Company's security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, practicable an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a twelve month period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreementthe Underwriting Agreement (but in no event commencing later than 90 days after such date), whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in which shall satisfy the ordinary course provisions of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicableSection 11(a) of the Commission, except as contemplated by Securities Act and the Prospectusrules and regulations of the Commission thereunder and to advise the Managers in writing when such statement has been made available.
(qf) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for During a period of 180 90 days after from the Closing Timedate of the Underwriting Agreement, without the prior written consent of the UnderwriterManagers, on behalf of the Underwriters, not to offer, sell, contract to sell, grant any shares option for the sale of, or otherwise dispose of, any Debt Securities or any securities of the Company that are substantially similar to the Debt Securities including, but not limited to, any securities that are convertible into or exercisable or exchangeable for shares of, Common Stock or that represent the right to receive Debt Securities or any such substantially similar securities of the Company (other than the Debt Securities offered hereby).
(g) Whether or not any sale of Debt Securities is consummated, to pay or cause to be paid all expenses incident to the performance of the obligations of the Company under the Underwriting Agreement, including, without limitation: (i) the preparation and filing of the Registration Statement (including the Rule 462 (b) Registration Statement, if any) and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance and delivery of the Debt Securities, (iii) the fees and disbursements of the Company's counsel and accountants, (iv) the qualification of the Debt Securities under securities or Blue Sky laws in accordance with the provisions of Section 4(d) hereof, including filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the printing or producing and delivery of any plan Blue Sky or arrangement described legal investment memoranda, (v) the printing and delivery to the Underwriters in quantities as hereinabove stated of copies of the ProspectusRegistration Statement and all amendments thereto and of the Prospectus and any amendments or supplements thereto, (vi) the filing fees incident to, and the fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by the National Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Debt Securities, (vii) any fees charged by rating agencies for the rating of the Debt Securities and (viii) all costs and expenses, if any, incident to listing the Debt Securities on the New York Stock Exchange.
(h) If the Company elects to rely upon Rule 462 (b), the 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 Company 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 Act.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The If reasonably requested by you in connection with the offering of the Certificates, the Company will use its best efforts to cause prepare a preliminary prospectus supplement containing such information concerning the Registration Statement to become effective Certificates as you and will notify the Underwriter immediatelyCompany deem appropriate, and confirm immediately following the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) execution of the receipt Terms Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and that sets forth the number or principal amount of any comments Certificates covered thereby, the names of the Underwriters participating in the offering and the number or principal amount of Certificates which each Underwrit- er severally has agreed to purchase, the name of each Underwriter, if any, acting as representative in connec- tion with the offering, the price at which the Certifi- xxxxx are to be purchased by the Underwriters from the Commission’s staffCompany, (iii) of any request the initial public offering price, the selling concession and reallowance, if any, and such other infor- mation concerning the Certificates as you and the Company deem appropriate in connection with the offering of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesCertificates. The Company will use every reasonable effort promptly transmit copies of the Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any such stop order or of any order preventing or suspending such use andpreliminary prospectus supplement, if any such order is issuedthe Basic Prospectus and the Prospectus Supplement as you shall reasonably request. In addition, to obtain the lifting thereof at extent that any Underwriter (i) has provided to the earliest possible momentCompany Collateral Term Sheets or Series Term Sheets (each as defined below) that such Underwriter has provided to a prospective investor, the Company will file such Collateral Term Sheets or Series Term Sheets as an exhibit to a report on Form 8-K within two Business Days of its receipt thereof, or (ii) has provided to the Company Structural Term Sheets or Compu- tational Materials (each as defined below) that such Underwriter has provided to a prospective investor, the Company will file or cause to be filed with the Commis- sion a report on Form 8-K containing such Structural Term Sheet and Computational Materials, as soon as reasonably practicable after the date of this Agreement, but in any event, not later than the date on which the Final Pro- spectus is filed with the Commission pursuant to Rule 424.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, If at any time when a prospectus the Final Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Certificates any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Final Prospectus in order that the Final 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the any Registration Statement or amend or supplement the Final Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act RegulationsAct, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Final Prospectus comply with such requirements.
(c) During the period when the Final Prospectus is required by the 1933 Act to be delivered in connection with sales of the Certificates or during the entire period that any Class of Certificates is outstanding which were expected to be publicly-offered securities for purposes of ERISA, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period between the date of the applicable Terms Agreement and the Closing Date, the Company will inform you of its intention to file any amendment to any Registration Statement, any supplement to the Final Prospectus or any document that would as a result thereof be incorporated by reference in the Final Prospectus, will furnish you with copies of any such amendment, supplement or other document and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably ob- ject.
(e) During the period when the Final Prospectus is required by the 1933 Act to be delivered in connection with the sales of the Certificates, the Company will notify you immediately, and confirm the notice in writ- ing, (i) of the effectiveness of any amendment to any Registration Statement, (ii) of the mailing or the deliv- ery to the Commission for filing of any supplement to the Final Prospectus or any document that would as a result thereof be incorporated by reference in the Final Pro- spectus, (iii) of the receipt of any comments from the Commission with respect to any Registration Statement or the Prospectus, (iv) of any request by the Commission for any amendment to any Registration Statement or any sup- plement to the Final Prospectus or for additional infor- mation relating thereto or to any document incorporated by reference in the Final Prospectus and (v) of the issuance by the Commission of any stop order suspending any effectiveness of any Registration Statement, of the suspension of the qualification of the Certificates for offering or sale in any jurisdiction, or of the institu- tion or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company will furnish to the Representative, without charge, two copies of each Registration Statement as originally filed and of all amendments thereto, wheth- er filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and copies of all consents and certifi- xxxxx of experts as you may reasonably request, and has furnished or will furnish to you, for each other Under- writer, one copy of each Registration Statement as origi- xxxxx filed and of each amendment thereto.
(g) The Company will cause the Trust to make gener- ally available to Certificateholders and to the Represen- tative as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Trust occurring after the effective date of the Initial Registration Statement (or, if later, the effective date of the Addi- tional Registration Statement), which shall satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of the Commission promulgated thereunder.
(h) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Securities Certif- icates for offering and sale under the applicable securities securi- ties laws of such states and other jurisdictions as the Underwriter 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 StatementTerms Agreement applicable to such Certificates; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities the Certificates have been qualified as above providedprovided above.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The To the extent, if any, that the rating provided with respect to the Certificates by the rating agency or agencies that initially rate the Certificates is condi- tional upon the furnishing of documents or the taking of any other actions by the Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective Company shall furnish such documents and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effectivetake any such other actions.
(j) For a period from the date of five years after this Agreement until the Closing Timeretirement of the Certificates, or until such time as the Underwriters shall cease to maintain a sec- ondary market in the Certificates, whichever first oc- curs, the Company will furnish deliver to the Underwriter copies Underwriters (i) the annual Servicer's Certificate, (ii) the annual inde- pendent certified public accountants' reports furnished to the Trustee, (iii) all documents required to be dis- tributed to Certificateholders of the Trust and (iv) all annual reportsdocuments filed with the Commission pursuant to the Exchange Act or any order of the Commission thereunder, quarterly reports and current reports in each case as provided to the Trustee or filed by the Company with the Commission, as soon as such other documents, reports, proxy statements and information as shall be reports are furnished by to the Trustee or filed or, if an affiliate of the Company to its stockholders generallyis not the Servicer, and such other public information concerning the Bank or the Company as the Underwriter may reasonably requestsoon thereafter as practicable.
(k) The Company will provide to Between the holders date of the Common Stock annual reports containing financial statements audited by applicable Terms Agree- ment and the Company’s independent auditors and, upon written requestClosing Date or such other date as is set forth in such Terms Agreement, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, without your prior written consent, directly or indirect- ly, sell, offer to sell, grant any option for the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issuesale of, or otherwise dispose of, for a period of 180 days after the Closing TimeCertificates set forth in such Terms Agreement, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than as set forth in connection with any plan or arrangement described in the Prospectussuch Terms Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Credit Card Receivables Funding Corp)
Certain Covenants of the Company. The So long as any Note remains outstanding, the Company covenants with the Underwriter agrees as follows:
(a) The Company will use its best efforts To elect to cause the Registration Statement to become effective and will notify the Underwriter immediatelybe treated, and confirm the notice in writingto maintain its status, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or as a regulated investment company for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such US federal income tax purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.;
(b) The To maintain its registration with the U.S. Securities and Exchange Commission (the "COMMISSION") as a closed-end management investment company (as defined under the Investment Company will not at any time file or make any amendment Act of 1940, as amended (the "INVESTMENT COMPANY ACT")) and to observe its obligations and duties as a registered investment company under the Registration Statement or, if the Investment Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.Act;
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.To comply with Applicable Law;
(d) The Company will deliver To not voluntarily incur any indebtedness or cause to be delivered liabilities other than the following (the indebtedness and liabilities described in clauses (i) through (v), collectively, the "PERMITTED LIABILITIES"):
(i) indebtedness and liabilities pursuant to the UnderwriterNotes or the related Fiscal Agency Agreement;
(ii) indebtedness and liabilities pursuant to any investment advisory agreement, without chargeadministration agreement, from time to time until custodial agreement, transfer agent agreement, placement agent agreement or otherwise incurred in connection with the effective date conduct of the Registration StatementCompany's business, as many copies including the management of each preliminary prospectus as assets in accordance with the Underwriter may reasonably request, Portfolio Guidelines;
(iii) indebtedness and liabilities for expenses of formation and all other expenses and obligations incident to the operation or management of the Company;
(iv) indebtedness and liabilities in respect of Company Taxes of the Company hereby consents to not yet due and payable or Company Taxes of the use Company due and payable that the Company is contesting in good faith; and
(v) indebtedness and liabilities in respect of borrowed money provided that at no time will the outstanding principal amount of indebtedness or liabilities of the Company in respect of borrowed money (including in respect of the Notes) exceed 20% of the Net Asset Value at such copies time (it being understood for purposes permitted by the 1933 Act. The Company will deliver of this covenant that customary settlement obligations in respect of financial transactions shall not be considered indebtedness or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number liabilities in respect of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably requestborrowed money).
(e) The To do all things necessary to preserve and keep in full force and effect its existence, rights and franchises, including, at all times:
(i) having a board of directors;
(ii) filing its own Company will comply Tax returns and paying any Company Taxes so required to be paid under Applicable Law;
(iii) observing Delaware limited liability company formalities;
(iv) maintaining adequate capital in light of its contemplated business purpose, transactions and liabilities; and
(v) causing its officers, agents and other representatives to act at all times with respect to the best of its ability with the 1933 Act Company consistently and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion in furtherance of the distribution of the Securities as contemplated in this Agreement foregoing and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales best interests of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.;
(f) The Company will use its best efforts, To not amend the Portfolio Guidelines without the consent of the persons entitled to vote a majority in cooperation with aggregate principal amount of the Underwriter, to qualify the Securities for offering and sale Notes then Outstanding;
(g) To make no investments other than investments permitted under the applicable securities laws Portfolio Guidelines;
(h) To make all necessary filings with and submissions to the Commission and as otherwise required by Applicable Law;
(i) To not create, assume, suffer to exist, or take any action which would result in the creation of such states any Lien on any of the Company's assets other than Liens for Company Taxes not yet due or payable or being contested in good faith and other jurisdictions as Liens customarily created or arising in connection with transactions permitted under the Underwriter may designate and to Portfolio Guidelines;
(j) To maintain such qualifications in effect for a period Net Asset Value at any time of not less than one year from the effective date of the Registration Statementfour billion dollars (U.S.$4,000,000,000); provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.and
(k) The Company will provide to the holders To notify each registered holder of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors andNotes, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
Barclays Wealth and Barclays Capital (l) The Company will file with Nasdaq all documents and notices required by Nasdaq both being divisions of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicableBarclays Bank PLC) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period any Event of 180 days after the Closing Time, without the prior written consent Default. For purposes of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.these Terms:
Appears in 1 contract
Samples: Fiscal Agency Agreement (Thirty Eight Hundred Fund LLC)
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(hf) The To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the net proceeds received by it from the sale authorization of the Offered Securities in for listing on the manner listing exchange as specified in the Prospectus under applicable Final Term Sheet as soon as reasonably practicable.
(g) If the caption “Use of Proceeds.”Offered Securities include Debt Securities, the Company also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 4(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the holders Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectusv) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ov) In respect of a series of Debt Securities, which must be redeemed before the first anniversary of the date of its issue, the Company will issue such Debt Securities only if the following conditions apply (or the Debt Securities can otherwise be issued without contravention of section 19 of the FSMA): (a) each relevant Underwriter represents, warrants and agrees in the terms set out in Section 2(a); and (b) the redemption value of each such Debt Security is not less than £100,000 (or an amount of equivalent value denominated wholly or partly in a currency other than sterling), and no part of any Debt Security may be delivered unless the redemption value of that part is not less than £100,000 (or such an equivalent amount).
(h) If the Offered Securities include Shares, the Company also covenants with you and each Underwriter as follows:
(i) The Company will not while the completion of the distribution of such Offered Securities is pending, file or make any amendment to the Registration Statement or the ADS Registration Statement, or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement and the ADS Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement or the ADS Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement and the ADS Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1934 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will promptly prepare and file with the Commission, subject to Section 4(h)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement, the ADS Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, at its expensewhile the completion of the distribution of any Offered Shares is pending, subsequent notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement or the ADS Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the ADS Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or the ADS Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(pv) The Company will not, prior comply with the Deposit Agreement so that ADRs evidencing any ADSs representing Offered Shares will be executed and delivered by the Depositary to the Option Underwriters at the applicable Closing Time or Date or thirty (30) days after of Delivery as the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectuscase may be.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants -------------------------------- with the each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the principal amount of the Offered Securities and their material terms, the name of each Underwriter participating in the offering and the principal amount of the Offered Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will use its best efforts promptly transmit copies of the Prospectus Supplement to cause the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters as many copies of any preliminary prospectus supplement and the Prospectus as you shall reasonably request.
(b) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(c), file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(c) During the period when the Prospectus is required by the 1933 Act to become effective be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing; and will not file any such amendment, supplement or other document in a form to which you shall reasonably object.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify the Underwriter you immediately, and confirm the notice in writingwriting (with respect to clause (i), upon request), (i) when of the Registration Statement, or effectiveness of any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staffCommission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iii) of any request of by the Commission’s staff Commission to amend the Registration Statement or amend or any supplement to the Prospectus or for additional information relating thereto and (iv) of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or to the Company's knowledge, the threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(ce) The Company has furnished or will furnish to you one signed copy for the Underwriter as many signed and conformed copies managing Underwriters of each of the Registration Statement (as originally filed filed) and of each amendment all amendments thereto, whether filed before or after the Registration Statement becomes became effective, and as many copies of all exhibits and documents filed therewith and signed copies therewith, including documents incorporated by reference into the Prospectus pursuant to Item 12 of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by Form S-3 under the 1933 Act. The Company will deliver or cause to be delivered to Act (through the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during end of the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities) and signed copies of all consents and certificates of experts, any event shall occur as you may reasonably request, and has furnished or condition exist will furnish to each of you, as a result many conformed copies of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(bbut without exhibits) hereof, such amendment or supplement as you may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirementsreasonably request.
(f) The Company will use its reasonable best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 Statementhereof; provided, however, that the Company shall not be obligated to file any -------- ------- general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Offered Securities for investment under the laws of such jurisdictions as you may reasonably request.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 45 days after the close of the period covered therebythereby (90 calendar days in the case the period corresponds to the fiscal year of the Company), an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) 158 of the 1933 Act Regulations), covering a period of at least 12 months beginning after the effective date of the Registration Statement and covering a period of 12 months beginning after the effective date of any post-effective amendment to the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such effective date.
(h) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations. If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(c), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(i) The Company will use the net proceeds received by it from the sale of the Offered Securities in the manner specified in the Prospectus under the caption “"Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective".
(j) For a period of five three years after the Closing Time, the Company will furnish to the Underwriter you copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K not be or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) Ifbecome, at the any time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date expiration of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days three years after the Closing Time, without the prior written consent an open-end investment trust, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the UnderwriterInvestment Company Act of 1940, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in as amended (the Prospectus"Investment Company Act").
Appears in 1 contract
Certain Covenants of the Company. The Company covenants -------------------------------- with the Underwriter you as follows:
(a) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, not at any time make any amendment or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus Offering Memorandum of which you shall not have previously been advised and furnished a copy or any amended Prospectus to which you or your counsel shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentreasonably object.
(b) The Company will not at any time file or make any amendment promptly deliver to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriteryou, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when from the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply date hereof to the best date of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities by you, such number of copies of the Offering Memorandum, as contemplated in this Agreement and in it may then be amended or supplemented, or the Prospectus. Preliminary Offering Memorandum, as it may then be amended or supplemented, as you may reasonably request.
(c) If, at any time when a prospectus is required by the 1933 Act prior to be delivered in connection with sales completion of the Securitiesdistribution of the Securities by you, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of your counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleadingtherein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessaryif, in the reasonable opinion of either such counselyour counsel or counsel for the Company, at any such time it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order Offering Memorandum to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company Company, at its own expense, will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to correct a purchaser, be misleading or so that such untrue statement Offering Memorandum as so amended or omission or to make the Registration Statement or the Prospectus supplemented will comply with applicable law, as the case may be, and furnish you such requirementsnumber of copies as you may reasonably request.
(fd) The Company will use its best effortsendeavor, in cooperation with the Underwriteryou, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one a year from the effective date of the Registration StatementOffering Memorandum; provided, however, that the Company shall -------- ------- not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdictions as you may request.
(e) Except following the effectiveness of the Registration Statement, neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of Regulation D) will solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising (within the meaning of Rule 502(C) of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the 1933 Act.
(f) Neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of the 0000 Xxx) will offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the 0000 Xxx) the offering of which security could be integrated with the sale of the Securities in a manner that would require the registration of any of the Securities under the 1933 Act.
(g) The Company will make generally availablenot be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under the 1940 Act, and will not be or become a closed-end investment company required to be registered, but not registered, thereunder.
(h) During the period from the Closing Time to the earlier of (i) three years after the Closing Time or (ii) the date of effectiveness of the Registration Statement, the Company will not, and will not permit any of its affiliates (as such term is defined in Rule 144 under the 0000 Xxx) to, resell any of the Securities that have been reacquired thereby, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the 1933 Act.
(i) The Company will, so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 158 144(a)(3) under the 1933 Act, either (i) file reports and other information with the Commission under Section 13 or Section 15(d) of the 1933 Act Regulations 1934 Act, or (“Rule 158”)ii) in the event the Company is not subject to Section 13 or Section 15(d) of the 1934 Act, furnish to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale prospective purchasers of the Securities in designated by such holders, upon request of such holders or such prospective purchasers, the manner specified in the Prospectus information required to be delivered pursuant to Rule 144A(d)(4) under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered permit compliance with Rule 144A in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 resale of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) Securities. For a period of five years after the Closing Time, the Company will furnish make available to the Underwriter you upon request copies of all annual reports, quarterly such reports and current reports filed by the Company information, together with the Commission, such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generallythe holders of the Securities issued by it.
(j) If requested by you, and such other public information concerning the Bank or the Company as will use its best efforts in cooperation with you to permit the Underwriter may reasonably requestSecurities sold in transactions described in Section 2(d)(ii)(A) hereof to be eligible for clearance and settlement through The Depository Trust Company.
(k) The Company Each Security will provide bear the following legend until such legend shall no longer be necessary or advisable because such Security is no longer subject to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors andrestrictions on transfer described therein: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, upon written requestAS AMENDED (THE "SECURITIES ACT"), the Company’s annual reports on Form 10OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-K or Form 10-KSBU.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, as applicable.(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPHS (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
(l) The Company will file apply the net proceeds that it receives from the offer and sale of the Securities issued by it in the manner set forth with Nasdaq all documents and notices required by Nasdaq respect to it in the Offering Memorandum under the heading "Use of companies that have issued securities that are quoted on the Nasdaq National MarketProceeds."
(m) The Company shall cause Except following the effectiveness of the Registration Statement, none of the Company, any affiliates (as such term is defined in Rule 501(b) of Regulation D) or any person acting on behalf thereof (other than you) will engage in any directed selling efforts (as such term is defined under Regulation S) in the United States with respect to be prepared by its counsel one or more “blue sky” surveys (eachthe Securities, a “Blue Sky Survey”) for use in connection and each of the Company, such affiliate and such other person acting on behalf thereof will comply with the offering restrictions requirement of Regulation S.
(n) Prior to the Closing Time, the Company will not issue any press release or other communications directly or indirectly or hold any press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Securities as contemplated by Company, without your prior written consent, unless in the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each judgment of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepareits counsel, and file after notification to you, such press release or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if communication is required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omittedlaw.
(o) The Company willhas complied and will comply with all applicable provisions of Florida H.B. 1771, at its expensecodified as Section 517.075, subsequent and all regulations promulgated thereunder relating to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used issuers doing business in connection with the issuance of the SecuritiesCuba.
(p) The For a period of 120 days from the date of the Offering Memorandum, the Company will not, without your prior written consent, directly or indirectly, offer, sell, grant any option to purchase or otherwise dispose of any debt securities of the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transactionCompany, other than the Exchange Securities referred to in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the ProspectusRegistration Rights Agreement.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without your consent, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(g)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Certificates) not otherwise specified in the effective date of preliminary prospectus or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which you reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time it is when delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses you will furnish to the Company) hereofto which Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Certificates have been sold by the Underwriters, prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period Between the date of five years after this Agreement and the Closing TimeDate, the Company will furnish shall not, without your prior written consent, offer, sell or enter into any agreement to sell (as public debt securities registered under the Underwriter copies Securities Act (other than the Certificates) or as debt securities which may be resold in a transaction exempt from the registration requirements of all annual reportsthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), quarterly reports and current reports filed any equipment notes, pass through certificates, equipment trust certificates or equipment purchase certificates secured by aircraft owned by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank (or the Company as the Underwriter may reasonably requestrights relating thereto).
(k) The Company will provide shall prepare a final term sheet relating to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by Certificates, containing only information that describes the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each final terms of the Company Certificates or the offering in a form consented to by you and shall file such final term sheet within the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if period required by Rule 430A, a post-effective amendment to 433(d)(5)(ii) under the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to Securities Act following the issuance date the final terms have been established for the offering of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the SecuritiesCertificates.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the Underwriter each of you as follows:
(a) Immediately following the execution of each Terms Agreement, the Company will prepare a Prospectus Supplement setting forth the principal amount of Debt Securities or the number of shares of Equity Securities covered thereby and their terms not otherwise specified in the applicable Indenture, if any, the names of the Underwriters and the principal amount of Debt Securities or the number of shares 14 14 of Equity Securities which each of them severally has agreed to purchase, the price at which the Offered Securities are to be purchased by you from the Company, the initial public offering price, the selling concession and reallowance, if any, any delayed delivery arrangements, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Securities. The Company will use its best efforts promptly transmit copies of the Prospectus Supplement to cause the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to each of you as many copies of the Prospectus and such Prospectus Supplement as the Representatives shall reasonably request.
(b) The Company has furnished or will furnish to you, without charge, as many signed and conformed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) and signed copies of all consents and certificates of experts and, during the period mentioned in paragraph (f) below, as many copies of the Prospectus and any supplements and amendments thereto, in each case as soon as available, as you may reasonably request.
(c) From the date of a Terms Agreement, and for so long as a Prospectus is required to become effective be delivered in connection with the sale of Offered Securities covered by such Terms Agreement, the Company will give you notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish you with copies of any such amendment or supplement or other documents proposed to be filed a reasonable time in advance of filing and will not file any such amendment or supplement or use any such prospectus to which you or your counsel reasonably shall object.
(d) From the date of a Terms Agreement, and for so long as a Prospectus is required to be delivered in connection with the sale of Offered Securities covered by such Terms Agreement, the Company will notify the Underwriter you immediately, and confirm the notice in writing, (i) when of the Registration Statement, or effectiveness of any post-effective amendment to the Registration Statement, shall have become effective, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any amended Prospectus shall have been fileddocument to be filed pursuant to the 1934 Act which will be incorporated by reference into the Registration Statement or Prospectus, (iiiii) of the receipt of any comments from the Commission’s staffCommission with respect to the Registration Statement, the Prospectus or any Prospectus Supplement, (iiiiv) of any request of by the Commission’s staff Commission for any amendment to amend the Registration Statement or amend any amendment or supplement to the Prospectus or for additional information information, and (ivv) of the issuance by 15 15 the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening initiation of any proceedings for any of such purposesthat purpose. The Company will use make every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(be) The Except as provided in the applicable Terms Agreement, between the date of any Terms Agreement and termination of any trading restrictions specified in the applicable Terms Agreement, if any, or Closing Time, whichever is later, with respect to (i) the Debt Securities covered thereby, the Company will not at not, without your prior consent or as otherwise permitted by the Terms Agreement, offer or sell, or enter into any time file agreement to sell, any debt securities of the Company with a maturity of more than one year (it being understood that the Company may enter into lending agreements with commercial banks and other lenders and make borrowings thereunder, which borrowings may have maturities greater than one year), including additional Debt Securities, (ii) the Equity Securities covered thereby, the Company will not, without your prior consent or make as otherwise permitted by the Terms Agreement, offer or sell, or enter into any amendment agreement to sell, any shares of its Equity Securities or any securities convertible into or exchangeable or exercisable for or any right to purchase or acquire any shares of Equity Securities (it being understood that grants of stock options to directors, officers and employees of the Company or a subsidiary thereof, and issuances pursuant to the Registration Statement orexercise of such options, if shall not be precluded by this subsection (e)) and (iii) the Underlying Securities covered thereby, the Company has elected will not, without your prior consent or as otherwise permitted by the Terms Agreement, offer or sell, or enter into any agreement to rely upon Rule 430A sell, any securities of the 1933 Act Regulations (“Rule 430A”), same class as the Underlying Securities or any amendment securities convertible into or supplement exercisable or exchangeable for or any right to the Prospectus (including documents incorporated by reference into the Registration Statement purchase or the Prospectus) acquire Underlying Securities or securities of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectsuch class.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(ef) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act RegulationsAct, and the 1934 Act and the 1934 1939 Act Regulations, and the regulations thereunder so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the applicable Terms Agreement and in the Prospectus. If, If at any time when a prospectus when, in the opinion of your counsel, the Prospectus is required by the 1933 Act law to be delivered in connection with sales of the SecuritiesOffered Securities by you or by a dealer, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with law, the Company shall forthwith prepare and furnish, at the Company's 16 16 expense, to each of you and to the dealers (whose names and addresses you will furnish to the Company) to which Offered Securities may have been sold by you and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus as so amended or supplemented will comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirementslaw.
(fg) The Company will use its best efforts, in cooperation with the Underwriter, endeavor to qualify the Securities for offering offer and sale under the applicable securities or blue sky laws of such states and other jurisdictions as the Underwriter may designate you shall reasonably request and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementSecurities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided.
(gh) The With respect to each sale of Offered Securities, the Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, practicable but in any event not later than 90 days after the close of the period covered thereby, an earnings thereby a consolidated earning statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering for a twelve-month period of at least 12 months beginning after the effective date of (as defined in Rule 158(c) under the 1933 Xxx) xx the Registration Statement relating to such Securities, but not later than the first day of the Company’s 's fiscal quarter next following such effective datedate and that otherwise satisfies the provisions of Section 11(a) of the 1933 Act and the regulations thereunder.
(hi) The Company will use the net proceeds received by it from the sale of the Offered Securities in the manner specified in the Prospectus under the caption “heading "Use of Proceeds.”"
(ij) The Company, during the period when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockunder the 1933 Act, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and or 14 of the 1934 Act subsequent to within the time periods required under the Registration Statement becomes effective1934 Act.
(jk) For a period of five years after the applicable Closing Time, the Company will furnish to the Underwriter each of you copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the 17 17 Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K Securities or Form 10-KSB, as applicableto security holders of its respective publicly issued securities generally.
(l1) The Company will file with Nasdaq all documents and notices required by Nasdaq Upon the conversion or exchange of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (eachany Convertible Securities for shares of Common Stock, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies use its best efforts to cause such shares of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required Common Stock to be disclosed in duly listed on the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-BNew York Stock Exchange, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.Inc.
Appears in 1 contract
Samples: Underwriting Agreement (United Companies Financial Corp)
Certain Covenants of the Company. The Company covenants with the Underwriter as followshereby agrees:
(a) If the effective time of the Registration Statement is prior to the execution and delivery of this Agreement, the Company will file the Prospectus Supplement with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to by UBS, which consent shall not be unreasonably withheld, subparagraph (4)) of Rule 424(b) not later than the second business day following the execution and delivery of this Agreement. The Company will use its best efforts advise UBS and the Selling Stockholders promptly of any such filing pursuant to cause Rule 424(b). The Company will also file promptly all materials required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act.
(b) If the effective time of the initial Registration Statement is prior to the execution and delivery of this Agreement and an additional registration statement is necessary to register a portion of the Shares under the Act but the effective time thereof has not occurred as of such execution and delivery, the Company will file the additional registration statement with the Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this Agreement or, if earlier, on or prior to the time the Prospectus Supplement is printed and distributed to any Underwriter, or will make such filing at such later date as shall have been consented to by UBS.
(c) The Company will advise UBS and the Selling Stockholders promptly of any proposal to amend or supplement the Registration Statement to become effective and will notify as filed, the Underwriter immediatelyPre-Pricing Prospectus, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Permitted Free Writing Prospectus and will not effect such amendment or supplementation without UBS’ consent, which consent shall have been filed, (ii) of not be unreasonably withheld; and the receipt Company will also advise UBS and the Selling Stockholders promptly of any comments from amendment or supplementation of a Registration Statement, the Commission’s staffPre-Pricing Prospectus, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information any Permitted Free Writing Prospectus and (iv) of the issuance institution by the Commission of any stop order suspending the effectiveness proceedings in respect of the a Registration Statement or of any order preventing or suspending the use of any preliminary prospectusPermitted Free Writing Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company and will use every reasonable effort its best efforts to prevent the issuance of any such stop order or of any order preventing or suspending such use andand to obtain as soon as possible its lifting, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus relating to the Shares is required by the 1933 Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with sales of the Securitiesby any Underwriter or dealer, any event shall occur or condition exist occurs as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Disclosure Package or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not as then amended or supplemented would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time it is delivered to a purchaserunder which they were made, not misleading, or if it shall be necessary, in the reasonable opinion of either such counsel, is necessary at any such time to amend the Registration Statement Pre-Pricing Prospectus or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act RegulationsAct, the Company will promptly notify UBS and the Selling Stockholders of such event and will promptly prepare and file with the Commission, subject to Section 3(b) hereofat its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither UBS’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement as may be necessary to correct such untrue statement or omission or to make shall constitute a waiver of any of the Registration Statement or the Prospectus comply with such requirementsconditions set forth in Section 8.
(fe) The Company will use its best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as As soon as practicable, but not later than 90 days after the close of Availability Date (as defined below), the period covered thereby, Company will make generally available to its securityholders an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than which will satisfy the first provisions of Section 11(a) of the Act. For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such effective date, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal quarter next year, “Availability Date” means the 90th day after the end of such fourth fiscal quarter.
(f) The Company will furnish to you copies of the Registration Statement (two of which will be signed and will include all exhibits), each related preliminary prospectus supplement, and, so long as a prospectus relating to the Shares is required to be delivered under the Act (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as UBS requests. The Prospectus shall be so furnished on or prior to [ ], New York time, on the business day following the execution and delivery of this Agreement. All other such effective datedocuments shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(g) The Company will use its reasonable best efforts to arrange for the qualification of the Shares for sale under the laws of such jurisdictions as UBS designates and will continue such qualifications in effect so long as required for the distribution.
(h) For a period of 90 days after the date of the Prospectus relating to the Shares (the initial “Lock-Up Period”), the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Common Stock or securities convertible into or exchangeable or exercisable for any shares of its Common Stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of UBS, except (x) issuances of Common Stock pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, (y) grants of employee stock options or awards of common stock or restricted stock units pursuant to the terms of a plan in effect on the date hereof, or issuances of Common Stock pursuant to the exercise of such options, and (z) the filing of a registration statement with the Commission pursuant to the warrant holder rights agreement dated January 17, 1997; provided, however, that if (i) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or announces material news or a material event or (ii) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the announcement of the material news or material event, as applicable, unless UBS waives, in writing, such extension. The Company will use provide UBS and any other Underwriter and each stockholder subject to the net proceeds received by it from Lock-Up Period pursuant to the sale lock-up agreements described in Section 3(y) with prior notice of any such announcement that gives rise to an extension of the Securities in the manner specified in the Prospectus under the caption “Use of ProceedsLock-Up Period.”
(i) The Company agrees with the several Underwriters and the Selling Stockholders that the Company will pay all expenses incident to the performance of the obligations of the Selling Stockholders (including reasonable fees and disbursements of one counsel for each of (A) the Xxxx Selling Stockholders, National Union Fire Insurance Company of Pittsburgh, Pa., a member of American International Group, Inc. (“National Union”), and The Union Labor Life Insurance Company, during acting on behalf of its Separate Account P (“ULLICO”), collectively, such fees not to exceed $45,000, (B) Xxxxx-Xxxxxx Corporation, such fees not to exceed $20,000, and (C) O&G Industries, Inc., such fees not to exceed $20,000, and the period when a prospectus is required by obligations of the 1933 Act to be delivered Company under this Agreement, for any filing fees and other expenses (including fees and disbursements of its counsel) incurred in connection with sales qualification of Common Stockthe Shares for sale under the laws of such jurisdictions as UBS designates and the printing of memoranda relating thereto, will use its best efforts to cause a registration statement for the Common Stock filing fee incident to be effective the review by the National Association of Securities Dealers, Inc. of the Shares, for any travel expenses of the Company’s officers and will file promptly employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Shares, including the cost of any private aviation used in connection with attending or hosting such meetings, for any transfer taxes on the sale of the Shares to the Underwriters, for expenses incurred in distributing preliminary prospectuses and the Prospectus (including any amendments and supplements thereto) to the Underwriters and for all documents required to be filed other costs, expenses, fees and taxes in connection with the Commission pursuant to Section 13 and 14 performance of the 1934 Act subsequent to the time the Registration Statement becomes effectiveCompany’s other obligations hereunder.
(j) For a period of five years after the Closing Time, the The Company will furnish to comply with Rule 433(g) under the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably requestAct.
(k) The Company will provide not, at any time at or after the execution of this Agreement and prior to the holders latest possible additional time of purchase that may occur pursuant to Section 1 of this Agreement, offer or sell any Shares by means of any “prospectus” (within the meaning of the Common Stock annual reports containing financial statements audited by Act), or use any “prospectus” (within the Company’s independent auditors and, upon written request, meaning of the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(lAct) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering offer and sale of the Securities as contemplated by the Prospectus and a copy of Shares, in each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, case other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Perini Corp)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the principal amount of the Offered Securities and their material terms, the name of each Underwriter participating in the offering and the principal amount of the Offered Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will use its best efforts promptly transmit copies of the Prospectus Supplement to cause the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters as many copies of any preliminary prospectus supplement and the Prospectus as you shall reasonably request.
(b) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(c) hereof, file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(c) During the period when the Prospectus is required by the 1933 Act to become effective be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing; and will not file any such amendment, supplement or other document in a form to which you shall reasonably object.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify the Underwriter you immediately, and confirm the notice in writingwriting (with respect to clause (i), upon request), (i) when of the Registration Statement, or effectiveness of any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staffCommission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iii) of any request of by the Commission’s staff Commission to amend the Registration Statement or amend or any supplement to the Prospectus or for additional information relating thereto and (iv) of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or to the Company's knowledge, the threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(ce) The Company has furnished or will furnish to you for the Underwriter managing Underwriters as many signed and conformed copies as you have reasonably requested of each of the Registration Statement (as originally filed filed) and of each amendment all amendments thereto, whether filed before or after the Registration Statement becomes became effective, and as many copies of all exhibits and documents filed therewith and signed copies therewith, including documents incorporated by reference into the Prospectus pursuant to Item 12 of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by Form S-3 under the 1933 Act. The Company will deliver or cause to be delivered to Act (through the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during end of the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities) and copies of all consents and certificates of experts, as you may reasonably request. The Prospectus and any event shall occur amendments or condition exist as a result of which it is necessary, supplements thereto furnished to the Underwriters will be identical in all material respects to the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply electronically transmitted copies thereof filed with the requirements of Commission pursuant to XXXXX, except to the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.extent permitted by Regulation S-T.
(f) The Company will use its reasonable best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter you may designate designate, and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statementhereof; providedPROVIDED, howeverHOWEVER, that the Company shall not 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 Offered Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the legality of the Offered Securities for investment under the laws of such jurisdictions as you may reasonably request.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 45 days after the close of the period covered therebythereby (90 calendar days in the case the period corresponds to the fiscal year of the Company), an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regulations) covering a period of at least 12 months beginning after the effective date of the Registration Statement and covering a period of 12 months beginning after the effective date of any post-effective amendment to the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such effective date.
(h) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations. If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(c) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(i) The Company will use the net proceeds received by it from the sale of the Offered Securities in the manner specified in the Prospectus under the caption “"Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective".
(j) For a period of five three years after the Closing Time, the Company will furnish to the Underwriter you copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders securityholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K not be or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) Ifbecome, at the any time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date expiration of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days three years after the Closing Time, without the prior written consent an open-end investment trust, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the UnderwriterInvestment Company Act of 1940, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in as amended (the Prospectus"Investment Company Act").
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(hf) To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the authorization of the Offered Securities for listing on the listing exchange specified in the applicable Final Term Sheet as soon as reasonably practicable.
(g) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 3(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Securities is pending, notify each of you promptly, and confirm the notice in writing, of (a) the effectiveness of any amendment to the holders Registration Statement, (b) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (c) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (d) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectuse) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(oh) The Notwithstanding any other term of the Terms Agreement or any other agreements, arrangements, or understandings between the Company willand each Underwriter, at its expensethe Company acknowledges, subsequent accepts, and agrees, to the issuance extent applicable, to be bound by:
(1) the effect of the Securitiesexercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of a party, prepare that may include and distribute result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion of the BRRD Liability into shares, other securities or other obligations of a party or another person (and the issue to or conferral on the other party or parties of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the Terms Agreement;
(iii) the cancellation of the BRRD Liability;
(iv) the amendment or alteration of the amounts due, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a temporary period; and
(2) the variation of the terms of any Terms Agreement if necessary by the Relevant Resolution Authority, to give effect to the Underwriter and counsel to the Underwriter a bound volume containing copies exercise of the documents used Bail-in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated Powers by the ProspectusRelevant Resolution Authority.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter as followshereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Placement Agent may reasonably designate and to maintain such qualifications in effect so long as the Placement Agent may reasonably request for the distribution of the Shares; provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Placement Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) that it has not made, and unless it obtains the prior written consent of the Placement Agent, it will not make, any offer relating to the Shares that would constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Act. Any such free writing prospectus consented to by the Placement Agent is hereinafter referred to as a “Permitted Free Writing Prospectus”. The Company will use its best efforts to cause the Registration Statement to become effective agrees that it has complied and will notify comply, as the Underwriter immediatelycase may be, with the requirements of Rules 164 and confirm 433 of the notice Act applicable to any Permitted Free Writing Prospectus, including in writingrespect of timely filing with the Commission, legending and record keeping;
(ic) when if, at the Registration StatementExecution Time, or it is necessary for any post-effective amendment to the Registration StatementStatement to be declared effective before the Shares may be sold, shall have the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and the Company will advise the Placement Agent promptly and, if requested by the Placement Agent, will confirm such advice in writing, (i) when such post-effective amendment thereto has become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, and (ii) of when the receipt of any comments from Prospectus Supplement is filed with the Commission’s staffCommission pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely manner under such Rule);
(d) to advise the Placement Agent promptly, (iii) confirming such advice in writing, of any request of by the Commission’s staff Commission prior to amend the Closing Time for amendments or supplements to the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the issuance by Registration Statement and, if the Commission of any should enter a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending prior to the Closing Time, to use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every its commercially reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, efforts to obtain the lifting thereof at or removal of such order as soon as possible; to advise the earliest possible moment.
(b) The Company will not at Placement Agent promptly of any time file or make any amendment proposal prior to the Registration Statement or, if the Company has elected Closing Time to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment amend or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) , including by filing any documents that would be incorporated therein by reference, to provide the Placement Agent and its counsel copies of which the Underwriter shall not previously have been advised any such documents for review and furnished comment a copy, reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriter or counsel for the Underwriter Placement Agent shall reasonably object.object in writing;
(ce) The subject to Section 4(d) hereof, to file promptly (after giving effect to any extensions granted under Rule 12b-25 of the Exchange Act) all reports required to be filed by the Company has furnished or will furnish with the Commission in order to comply with the Exchange Act subsequent to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus Prospectus and for so long as the Underwriter may reasonably request, and delivery of a prospectus is required in connection with the Company hereby consents offering or sale of the Shares;
(f) to advise the Placement Agent promptly of the happening of any event within the time during which a prospectus relating to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus Shares is required to be delivered under the 1933 Act, such number Act which requires the making of copies of any change in the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, then being used so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will would not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time it is delivered to a purchaserunder which they are made, or if it shall be necessarynot misleading, in the reasonable opinion of either and, during such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commissiontime, subject to Section 3(b4(d) hereof, to prepare and furnish, at the Company’s expense, to the Placement Agent promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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, however, that the Company shall not 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 Securities have been qualified as above provided.change;
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, the Company will make generally available to its security holders and to the Placement Agent an earnings statement (which need not be audited) covering the twelve-month period ending December 31, 2007 that satisfies the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(h) to comply with all the undertakings contained in the Registration Statement;
(i) to furnish to the Placement Agent as early as practicable prior to the Closing Time, but not later than 90 two business days after the close prior thereto, a copy of the period covered therebylatest publicly available unaudited interim consolidated financial statements, an earnings statement if any, of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of which have been read by the Company’s fiscal quarter next following such effective date.independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(c) hereof;
(hj) The Company will use to apply the net proceeds received by it from the sale of the Securities Shares in the manner specified in the Prospectus set forth under the caption “Use of Proceeds.”
(i) The Company, during ” in the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.Prospectus Supplement;
(k) The Company will provide to reimburse the holders Placement Agent for reasonable expenses as set forth in the Engagement Letter in an amount not to exceed $135,000, and to pay all of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors andcosts, expenses, fees and taxes in connection with (i) the preparation and filing of the Prospectus Supplement and any amendments or supplements to the Registration Statement, and the printing and furnishing of copies of each thereof to the Placement Agent (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon written requestthe issuance or delivery of the ADRs, (iii) the producing, word processing and/or printing of this Agreement, the Purchase Agreements, 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 the Placement Agent and the Investors, (iv) the qualification of the Shares for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel for the Placement Agent) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Placement Agent and to dealers, (v) the fees and disbursements of any transfer agent or registrar for the Shares, (vi) the costs and expenses of the Company relating to any presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Placement Agent’s sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, in connection with the road show and (vii) the performance of the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.other obligations hereunder;
(l) The not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Ordinary Shares or securities convertible into or exchangeable or exercisable for Ordinary Shares or warrants or other rights to purchase Ordinary Shares or any other securities of the Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall substantially similar to Ordinary Shares, or file or cause to be prepared by its counsel one declared effective a registration statement under the Act relating to the offer and sale of any shares of Ordinary Shares or more “blue sky” surveys (each, a “Blue Sky Survey”) securities convertible into or exercisable or exchangeable for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey Ordinary Shares or surveys shall be delivered other rights to each purchase Ordinary Shares or any other securities of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit that are substantially similar to Ordinary Shares for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies a period of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) 45 days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in hereof (the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S“Lock-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing TimeUp Period”), without the prior written consent of the UnderwriterPlacement Agent, except for the registration of the Shares and the sales of the Shares pursuant to this Agreement and pursuant to (i) previously issued options, warrants or similar instruments; (ii) any shares ofcontractual obligations of the Company in effect as of the date of this Agreement, or as subsequently restructured or renegotiated, (iii) any securities convertible agreements providing for anti-dilution or other share issuance rights, (iv) any employee stock purchase, stock option, benefit or similar plan of the Company, (v) any merger, acquisition or other business combination transaction that the Company may enter into, or (vi) any licensing agreement or other commercial transaction entered into or exercisable in the ordinary course of business in which the consideration to be paid by the Company is in the form of such securities;
(m) to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for shares of, Common Stock other than the Shares and related American Depositary Shares;
(n) (i) in connection with the offering contemplated hereby and the process leading to such transaction, the Placement Agent is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any plan other party, (ii) the Placement Agent has not assumed and will not assume an advisory or arrangement described fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Placement Agent has advised or is currently advising the Company on other matters) and the Placement Agent has no obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (iii) the Placement Agent and its affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (iv) the Placement Agent has not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate; and
(o) the Company shall have used its best efforts to have furnished to the Placement Agent an agreement in the Prospectusform of Exhibit B hereto from the Company’s executive officers and directors.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representatives promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Class B Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Class B Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Class B Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Class B Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Class B Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Class B Certificates) not otherwise specified in the effective date of preliminary prospectus or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Class B Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as a representative of the Underwriters in connection with the offering, the price at which the Class B Certificates are to be purchased by the Underwriters from the Class B Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representatives and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActClass B Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Class B Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Class B Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) hereofto which Class B Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Class B Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Class B Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Class B Certificates have been sold by the Underwriters, then prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Class B Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Class B Certificates and, the related Series B Equipment Notes, or a junior class of pass through certificates with respect to a previously issued series and related equipment notes) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned by the Company (or exercisable rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Class B Certificates, containing only information that describes the final terms of the Class B Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectusoffering of the Class B Certificates.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter as followshereby agrees:
(a) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional furnish such information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary required and otherwise to correct such untrue statement or omission or to make cooperate in qualifying the Registration Statement or Units, the Prospectus comply with such requirements.
(f) The Company will use its best effortsShares, in cooperation with the Underwriter, to qualify Warrants and the Securities Warrant Shares for offering and sale by the Company under the applicable securities or blue sky laws of such states and or other jurisdictions as the Underwriter Agent may designate and to maintain such qualifications in effect so long as the Agent may request for a period of not less than one year from the effective date distribution of the Registration Statement; providedUnits, however, provided that the Company shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation or as a dealer in securities in corporation, to consent to the service of process under the laws of any such jurisdiction in which it is not so qualified (except service of process with respect to the offering and sale of the Units, the Shares, the Warrants and the Warrant Shares by the Company) or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The ; and to promptly advise the Agent of the receipt by the Company of any notification with respect to the suspension of the qualification of the Units, the Shares, the Warrants or the Warrant Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Agent electronic copies of the Base Prospectus, any Preliminary Prospectus Supplement and the Prospectus (in each case as amended or supplemented if the Company shall have made any amendments or supplements thereto after the respective dates of such documents); to furnish the Agent, without charge, during the period beginning on the date hereof and ending on the later of the time of purchase or such date, as in the opinion of counsel for the Agent, the Prospectus Supplement is no longer required by law to be delivered in connection with sales by the Agent, as many copies of the Prospectus and any amendments and supplements thereto (including any Incorporated Documents) as the Agent may reasonably request;
(c) if, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or any post-effective amendment thereto to be declared effective before the Units may be sold in the Offering, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and the Company will advise the Agent promptly and, if requested by the Agent, will confirm such advice in writing when the Registration Statement and any such post-effective amendment thereto has become effective;
(d) to advise the Agent promptly, confirming such advice in writing, of any request by the Commission, made prior to the time of purchase, for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, made prior to the time of purchase, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order prior to the time of purchase suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Agent promptly of any proposal to amend or supplement the Registration Statement or the Prospectus, made prior to the time of purchase, including by filing any documents that would be incorporated therein by reference, to provide the Agent and their counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing;
(e) subject to Section 4(d) hereof, to file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required to be delivered in connection with the Offering;
(f) to advise the Agent promptly of the happening of any event within the time during which a prospectus for the Offering is required to be delivered under the Act, which requires the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading, and, during such statements time, subject to Section 4(d) hereof, to prepare and reports furnish, at the Company’s expense, to the Agent promptly such amendments or supplements to such Prospectus as may be required necessary to reflect any such change; before amending the Registration Statement or supplementing any Preliminary Prospectus Supplement or the Prospectus in connection with the Offering (other than filings made by the laws Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of each jurisdiction in the Exchange Act), the Company will furnish you with a copy of such proposed amendment or supplement and will not file such amendment or supplement to which Securities have been qualified as above provided.you reasonably object;
(g) The Company will make generally available, within for so long as a prospectus is required to be delivered under the meaning of Rule 158 of Act in connection with the 1933 Act Regulations (“Rule 158”)Offering, to comply with all the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (undertakings contained in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.Statement;
(h) The Company will use to apply the net proceeds received by it from the sale of the Securities Units in the manner specified in the Prospectus set forth under the caption “Use of Proceeds.”” in the Prospectus;
(i) The without duplication, to reimburse the Agent for expenses in accordance with Section 5 of the Engagement Letter and to pay all of the costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the Base Prospectus, each Preliminary Prospectus Supplement and Prospectus Supplement, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agent (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units, the Shares, the Warrants and the Warrant Shares, including any stock or transfer taxes and stamp or similar duties payable by the Company upon the sale, issuance or delivery of such securities sold by the Company in the Offering, (iii) the producing, word processing and/or printing of this Agreement, any Purchase Agreements, 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 the Agent and the Purchasers, (iv) the qualification of the Units, the Shares, the Warrants and the Warrant 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 of counsel for the Agent) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Agent and to dealers, (v) any qualification of the Shares and the Warrant Shares for listing on AMEX and any registration thereof under the Exchange Act, (vi) the fees and disbursements of any transfer agent or registrar for the Units, the Shares, the Warrants and the Warrant Shares, (vii) the costs and expenses of the Company relating to any presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units, and (viii) the performance of the Company’s other obligations hereunder;
(j) until the completion of the distribution of the Units in the Offering, not to take, directly or indirectly, any action designed to or that would constitute or that would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Units, the Shares, the Warrants or the Warrant Shares;
(k) the Company will timely, and in any event prior to the time of purchase, file this Agreement with the Commission on an appropriate form; and
(l) other than Exempt Issuances, during the period when a prospectus is required by of ninety (90) days from the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Timedate hereof, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the UnderwriterAgent, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares of, of the Common Stock or any securities convertible into or exchangeable or exercisable for the Common Stock, or file, or cause to be filed, any registration statement under the Act with respect to any of the foregoing (collectively, the “Lock-Up Securities”) or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of, of the Common Stock or other than securities, in cash or otherwise. An “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise, exchange or conversion price of any such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors, provided any such issuance shall only be to a Person which is, itself or through its subsidiaries, an operating company in a business that the Company reasonably believes to be synergistic with the business of the Company and in which the Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d) securities as compensation for services, (e) securities in connection with Canadian flow-through financing, (f) securities in a firm commitment underwritten offering and (g) securities in connection with the severance of any plan or arrangement described in the Prospectusemployee.
Appears in 1 contract
Samples: Agency Agreement (Apollo Gold Corp)
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without your consent, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(g)) endeavor, in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus that complies with the Securities Act and that sets forth the principal amount of the Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Certificates) not otherwise specified in the effective date of preliminary prospectus or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the principal amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriter may reasonably requestUnderwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which you reasonably object.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the 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 not misleadingtherein, in the light of the circumstances existing at the time it is when delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses you will furnish to the Company) hereofto which Certificates may have been sold by you on behalf of the Underwriters and to any other dealers upon request, such amendment either amendments or supplement supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as may so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be necessary to correct such untrue statement misleading in any material respect or omission so that the Time of Sale Prospectus, as so amended or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Prospectus Time of Sale Prospectus, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying filed with the provisions Commission; provided that providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Certificates have been sold by the Underwriters, prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period Between the date of five years after this Agreement and the Closing TimeDate, the Company will furnish shall not, without your prior written consent, offer, sell or enter into any agreement to sell (as public debt securities registered under the Underwriter copies Securities Act (other than the Certificates) or as debt securities which may be resold in a transaction exempt from the registration requirements of all annual reportsthe Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), quarterly reports and current reports filed any equipment notes, pass through certificates, equipment trust certificates or equipment purchase certificates secured by aircraft owned by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank (or the Company as the Underwriter may reasonably requestrights relating thereto).
(k) The Company will provide shall prepare a final term sheet relating to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by Certificates, containing only information that describes the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each final terms of the Company Certificates or the offering in a form consented to by you and shall file such final term sheet within the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if period required by Rule 430A, a post-effective amendment to 433(d)(5)(ii) under the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to Securities Act following the issuance date the final terms have been established for the offering of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the SecuritiesCertificates.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Underwriter promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Underwriter, which consent will not be unreasonably withheld. If, at any time after the public offering of the Offered Certificates, the Prospectus is required by law to be delivered in connection with sales of the Offered Certificates by the Underwriter immediatelyor a dealer, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, event shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) occur as a result of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at Embraer's expense, to the Underwriter and to the dealers (whose names and addresses the Underwriter will furnish to the Company) to which Offered Certificates may have been sold by the Underwriter and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify the Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Offered Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriter, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as the Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Offered Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Offered Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus the Underwriter and the principal amount of the Offered Certificates, the price at which the Offered Certificates are to be purchased by the Underwriter from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActOffered Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the Underwriter, endeavor to qualify arrange for the Securities qualification of the Offered Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may designate reasonably designates and will endeavor to maintain such qualifications in effect so long as required for a period of not less than one year from the effective date distribution of the Registration StatementOffered Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) subject itself to taxation in respect any such jurisdiction.
(f) During the period of doing business in any jurisdiction in which it is not otherwise so subject. The ten years after the Closing Date, the Company will file promptly furnish to the Underwriter, upon request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the Company filed with the Commission; provided that providing a website address at which such Annual Reports and any such definitive proxy statements and reports as may be required by the laws of each jurisdiction in which Securities have been qualified as above providedaccessed will satisfy this clause (f).
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the Underwriter, any shares ofoffer, sell, or enter into any agreement to sell (as public debt securities convertible into or exercisable for shares of, Common Stock registered under the Securities Act (other than the Offered Certificates) or as debt securities which may be resold in connection with a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any plan equipment notes, pass through certificates, equipment trust certificates or arrangement described in equipment purchase certificates secured by aircraft owned or leased by the ProspectusCompany (or rights relating thereto).
Appears in 1 contract
Samples: Underwriting Agreement (Continental Airlines Inc /De/)
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 of any the 1933 Act Regulations and will furnish to the Underwriters named therein as many copies of the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a term sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities (a “Term Sheet”) and will file such Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158158 of the 1933 Act Regulations).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(hf) The To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the net proceeds received by it from the sale authorization of the Offered Securities in for listing on the manner specified in New York Stock Exchange, Inc. as soon as reasonably practicable.
(g) If the Prospectus under Offered Securities include Debt Securities, the caption “Use of Proceeds.”Company also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission thereunder, the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 4(h)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Debt Securities is pending, notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the holders Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectusv) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(ov) In respect of a series of Debt Securities, which must be redeemed before the first anniversary of the date of its issue, the Company will issue such Debt Securities only if the following conditions apply (or the Debt Securities can otherwise be issued without contravention of section 19 of the FSMA): (a) each relevant Underwriter represents, warrants and agrees in the terms set out in Section 2(a); and (b) the redemption value of each such Debt Security is not less than £100,000 (or an amount of equivalent value denominated wholly or partly in a currency other than sterling), and no part of any Debt Security may be delivered unless the redemption value of that part is not less than £100,000 (or such an equivalent amount).
(h) If the Offered Securities include Shares, the Company also covenants with you and each Underwriter as follows:
(i) The Company will not while the completion of the distribution of such Offered Securities is pending, file or make any amendment to the Registration Statement or the ADS Registration Statement, or any amendment or supplement to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or counsel for the Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement and the ADS Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement or the ADS Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement and the ADS Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the rules and regulations of the Commission thereunder so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and counsel for the Company, to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend the ADS Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 4(i)(i), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement, the ADS Registration Statement or the Prospectus comply with such requirements.
(iv) The Company will, at its expensewhile the completion of the distribution of any Offered Shares is pending, subsequent notify each of you promptly, and confirm the notice in writing, of (i) the effectiveness of any amendment to the Registration Statement or the ADS Registration Statement, (ii) the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the ADS Registration Statement, the Prospectus or any supplement to the Prospectus, (iv) any request by the Commission for any amendment to the Registration Statement or the ADS Registration Statement or any amendment or supplement to the Prospectus or for additional information and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Securities, prepare and distribute to lifting thereof at the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesearliest possible moment.
(pv) The Company will not, prior comply with the Deposit Agreement so that ADRs evidencing any ADSs representing Offered Shares will be executed and delivered by the Depositary to the Option Underwriters at the applicable Closing Time or Date or thirty (30) days after of Delivery as the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectuscase may be.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The In further consideration of the agreements of the Initial Purchasers herein contained, the Company covenants with the Underwriter as follows:
(a) The Company will use its best efforts to cause To advise the Registration Statement to become effective and will notify Representative promptly and, if requested by the Underwriter immediatelyRepresentative, and confirm the notice such advice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission any state securities commission of any stop order suspending the effectiveness of the Registration Statement qualification or exemption from qualification of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities Restricted Notes for offering or sale in any jurisdictionjurisdiction designated by the Initial Purchasers pursuant to Section 6(d) hereof, or of the institution or threatening initiation of any proceedings proceeding by any state securities commission or any other federal or state regulatory authority for any of such purposespurpose. The Company will shall use every reasonable effort its best efforts to prevent the issuance of any such stop order or order suspending the qualification or exemption of any order preventing Restricted Notes under any state securities or suspending such use blue sky laws and, if at any such time any state securities commission or other federal or state regulatory authority shall issue an order is issuedsuspending the qualification or exemption of any Restricted Notes under any state securities or blue sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting thereof of such order at the earliest possible momenttime.
(b) The Company will not at any time file or make any amendment To deliver to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the UnderwriterInitial Purchasers, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430Apracticable, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of many copies of the Prospectus Offering Memorandum (as supplemented or amendedamended if the Company shall have made any supplements or amendments thereto) as the Underwriter Initial Purchasers may reasonably request. Subject to the Initial Purchasers' compliance with their representations and warranties and agreements set forth in Section 8 hereof, the Company consents to the use of the Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(ec) The Company will comply For such period of time as the Initial Purchasers are required by law or customary practice to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion deliver an offering memorandum in respect of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. IfRestricted Notes, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, if any event shall occur or condition exist have occurred as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary Offering Memorandum in order to make the statements therein not misleadingtherein, in light of the circumstances existing at when the time it Offering Memorandum is delivered to a purchaseran Eligible Purchaser, not misleading, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time becomes necessary to amend the Registration Statement or amend or supplement the Prospectus in order Offering Memorandum to comply with the requirements of the 1933 Act or the 1933 Act Regulationslaw, the Company will promptly to forthwith prepare and file with the Commission, subject to Section 3(b) hereof, such an appropriate amendment or supplement to the Offering Memorandum and deliver to the Initial Purchasers, without charge, such number of copies thereof as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirementsreasonably requested.
(fd) The Company will To use its best efforts, in cooperation with the Underwriter, efforts to qualify the Securities Restricted Notes for offering offer and sale under the applicable securities or blue sky laws of such states and other jurisdictions as the Underwriter Initial Purchasers may designate and to maintain such qualifications pay (or cause to be paid), or reimburse (or cause to be reimbursed) the Initial Purchasers and their counsel for, reasonable filing fees and expenses in effect for a period connection therewith (including the reasonable fees and disbursements of not less than one year from counsel to the effective Initial Purchasers and filing fees and expenses paid and incurred prior to the date of the Registration Statement; hereof), provided, however, that the Company shall not be obligated required to qualify to do business as a foreign corporation or as a securities dealer or to file any a general consent to service of process or to qualify file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(e) So long as the Restricted Notes are outstanding, (i) to mail and make generally available as soon as practicable after the end of each fiscal year to the record holders of the Restricted Notes a foreign corporation or financial report of the Company on a consolidated basis, all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of shareholders' equity as of the end of and for such fiscal year, together with comparable information as of the end of and for the preceding year, certified by the Company's independent public accountants and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such holders, a dealer in securities in consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows as of the end of and for such period, and for the period from the beginning of such year to the close of such quarterly period, together with comparable information for the corresponding periods of the preceding year.
(f) So long as any jurisdiction of the Restricted Notes are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and remain outstanding and during any period in which it the Company is not so qualified subject to Section 13 or 15(d) of the Exchange Act, to subject itself make available to taxation any holder of Restricted Notes in respect connection with any sale thereof and any prospective purchaser 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 Restricted Notes from such holder, the information required by Rule 144A(d)(4) under the laws of each jurisdiction in which Securities have been qualified as above providedAct.
(g) The Company will make generally availableTo pay all expenses, within fees and taxes (other than transfer taxes on sales by the meaning of Rule 158 respective Initial Purchasers) in connection with the issuance and delivery of the 1933 Act Regulations Restricted Notes, except that the Company shall be required to pay the fees and disbursements (“Rule 158”other than disbursements referred to in Section 6(d) hereof) of PW, counsel to the Initial Purchasers, only in the events provided in Section 6(h) hereof, the Initial Purchasers hereby agreeing to pay such fees and disbursements in any other event, and that except as provided in such Section 6(h), to the holders Company shall not be responsible for any out-of-pocket expenses of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (Initial Purchasers in form complying connection with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective datetheir services hereunder.
(h) The Company will use If the net proceeds received by it from Initial Purchasers shall not take up and pay for the sale Restricted Notes due to the failure of the Securities in Company to comply with any of the manner conditions specified in Section 5 hereof, or, if this Agreement shall be terminated in accordance with the Prospectus under provisions of Section 12 hereof prior to the caption “Use Time of ProceedsPurchase or the Date of Delivery, as the case may be, to pay the reasonable fees and disbursements of PW, counsel to the Initial Purchasers, and, if the Initial Purchasers shall not take up and pay for the Restricted Notes due to the failure of the Company to comply with any of the conditions specified in Section 5 hereof, to reimburse the Initial Purchasers for their reasonable out-of-pocket expenses not to exceed $3,000 incurred in connection with the financing contemplated by this Agreement.”
(i) The Company, during During the period when referred to in Section 6(c) hereof, to not amend or supplement the Offering Memorandum unless the Company has furnished the Initial Purchasers and counsel to the Initial Purchasers with a prospectus is required by copy for their review and comment a reasonable time prior to the 1933 Act making of such amendment or supplement and has reasonably considered any comments of the Initial Purchasers, and not to be delivered make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in connection writing after consultation with sales the Initial Purchasers.
(j) During the period referred to in Section 6(c) hereof, to furnish the Initial Purchasers with copies of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 13, 14 or 15(d) of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably requestExchange Act.
(k) The Company will provide During the period referred to in Section 6(c) hereof, to comply with all requirements under the Exchange Act relating to the holders timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Common Stock annual reports containing financial Exchange Act and of its proxy statements audited by pursuant to Section 14 of the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicableExchange Act.
(l) The Company will file To comply in all material respects with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on its agreements set forth in the Nasdaq National MarketRegistration Rights Agreement.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) To obtain the approval of DTC for use in connection with the offering "book-entry" transfer of the Securities as contemplated by Restricted Notes, and to comply in all material respects with all of its agreements set forth in the Prospectus and a copy of each Blue Sky Survey representation letter or surveys shall be delivered to each letters of the Company and to DTC relating to the Underwriterapproval of the Restricted Notes by DTC for "book-entry" transfer.
(n) IfNot to (or permit any affiliate (as defined in Rule 144 under the Act) to) sell, at offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing Act) that would be integrated with the Commission in accordance with Rule 430A and Rule 424(b), copies sale of an amended Prospectus or, if required by Rule 430A, a post-effective amendment the Restricted Notes to the Registration Statement (including an amended Prospectus) containing all information so omittedInitial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Restricted Notes under the Act.
(o) The Company willNot to voluntarily claim, at its expenseand to actively resist any attempts to claim, subsequent to the issuance benefit of any usury laws against the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies holders of the documents used in connection with the issuance of the Securitiesany Restricted Notes.
(p) The Company will not, prior to During the Option Closing Date or thirty (30) days period of two years after the date Time of this AgreementPurchase, whichever occurs firstnot to, incur and not permit any material liability or obligationof its affiliates (as defined in Rule 144 under the Act) to, direct or contingent, or enter into resell any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated Restricted Notes which constitute "restricted securities" under Rule 144 under the Act that have been reacquired by the Prospectusany of them.
(q) To take all reasonable action necessary to enable S&P, Xxxxx'x and Fitch to provide their respective credit ratings of the Restricted Notes.
(r) Until the second anniversary of the Time of Purchase, not to, and not to permit any affiliates under its control to, purchase any Restricted Notes unless, immediately upon any such purchase, the Company or any such affiliate shall submit such Restricted Notes to the Trustee for cancellation.
(s) Not to, and not to permit any of its affiliates or any person acting on its or their behalf (other than the Initial Purchasers, as to which no agreement is made) to, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Restricted Notes under the Act.
(t) Any information provided by the Company to publishers of publicly available databases about the terms of the Restricted Notes shall include a statement that the Restricted Notes have not been registered under the Act and are subject to restrictions under Rule 144A under the Act and Regulation S under the Act.
(u) The Company will not sell take, directly or issueindirectly, contract any action designed to sell or issuewhich has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise dispose ofotherwise, for a period of 180 days after the Closing Time, without the prior written consent in stabilization or manipulation of the Underwriter, price of any shares of, security of the Company to facilitate the sale or any securities convertible into or exercisable resale of the Restricted Notes.
(v) The Company will cause the proceeds of the issuance and sale of the Restricted Notes to be applied for shares of, Common Stock other than in connection with any plan or arrangement the purposes described in the ProspectusOffering Memorandum.
Appears in 1 contract
Samples: Purchase Agreement (CMS Energy Corp)
Certain Covenants of the Company. The Company covenants with the Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise you promptly of any proposal to cause amend or supplement the Registration Statement to become effective or the Prospectus (except by documents filed under the Exchange Act) and will notify not effect such amendment or supplement (except by documents filed under the Exchange Act) without your consent, which consent will not be unreasonably withheld. If, at any time after the public offering of the Class C Certificates as the Prospectus is required by law to be delivered in connection with sales of the Class C Certificates by the Underwriter immediatelyor a dealer, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, event shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) occur as a result of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading in any material respect, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish, at its own expense, to the Underwriter and to the dealers (whose names and addresses you will furnish to the Company) to which Class C Certificates may have been sold by you and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading in any material respect or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify the Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Class C Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall (subject to the proviso to Section 4(e)) endeavor, in cooperation with the Underwriter, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed) and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as soon as available and in such quantities as the Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver or cause to be delivered prepare a Prospectus Supplement that complies with the Securities Act and that sets forth the principal amount of the Class C Certificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Underwriter, without charge, from time to time until Class C Certificates) not otherwise specified in the effective date of Preliminary Prospectus Supplement or the basic prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus as the Underwriter may reasonably requestand the principal amount of the Class C Certificates that it has agreed to purchase, the price at which the Class C Certificates are to be purchased by the Underwriter from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActClass C Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as Supplement to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best effortsshall, in cooperation with the Underwriter, endeavor to qualify arrange for the Securities qualification of the Class C Certificates for offering offer and sale under the applicable securities or "blue sky" laws of such states and other jurisdictions in the United States as the Underwriter may you reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period of not less than one year from the effective date distribution of the Registration StatementClass C Certificates; provided, however, PROVIDED that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or securities, (ii) file a general consent to subject itself to taxation in respect service 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus process or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Samples: Deposit Agreement
Certain Covenants of the Company. The Company covenants and agrees with each of the Underwriter Initial Purchasers as follows:
(a) The Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, not at any time make any amendment or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus Offering Memorandum of which the Initial Purchasers shall not have previously been filed, (ii) advised and furnished a copy for a reasonable period of time prior to the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend proposed amendment or supplement and as to which the Prospectus Initial Purchasers or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momenttheir counsel shall reasonably object.
(b) The Company will not at any time file or make any amendment promptly deliver to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the UnderwriterInitial Purchasers, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when from the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply date hereof to the best date of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities by the Initial Purchasers, such number of copies of the Offering Memorandum, as contemplated in this Agreement it may then be amended or supplemented, or the Preliminary Offering Memorandum, as it may then be amended or supplemented, as the Initial Purchasers and in the Prospectus. their counsel may reasonably request.
(c) If, at any time when a prospectus is required prior to completion of the distribution of the Securities by the 1933 Act to be delivered in connection with sales of the SecuritiesInitial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of their counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleadingtherein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessaryif, in the reasonable opinion of either such counselcounsel to the Initial Purchasers or counsel for the Company, at any such time it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order Offering Memorandum to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company Company, at its own expense, will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary so that the statements in the Offering Memorandum as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to correct a purchaser, be misleading or so that such untrue statement Offering Memorandum as so amended or omission or to make the Registration Statement or the Prospectus supplemented will comply with applicable law, as the case may be, and furnish the Initial Purchasers such requirementsnumber of copies as they may reasonably request.
(fd) The Company will use its best effortsendeavor, in cooperation with the UnderwriterInitial Purchasers, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter Initial Purchasers may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be necessary to complete the effective date resale of the Registration StatementSecurities by the Initial Purchasers; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided. The Company will also supply the Initial Purchasers with such information as is necessary for the determination of the legality of the Securities for investment under the laws of such jurisdictions as the Initial Purchasers may request.
(e) Except following the effectiveness of the Registration Statement, neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of Regulation D) will solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising (within the meaning of Rule 502(C) of Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the 1933 Act.
(f) Neither the Company nor any of its affiliates (as such term is defined in Rule 501(b) of the 1933 Act) will offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the 1933 Act) the offering of which security could be integrated with the sale of the Securities in a manner that would require the registration of any of the Securities under the 1933 Act.
(g) The Company will make generally availablenot be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under the 1940 Act, and will not be or become a closed-end investment company required to be registered thereunder.
(h) During the period from the Closing Time to the earlier of (i) two years after the Closing Time or (ii) the date of effectiveness of the Registration Statement, the Company will not, and will not permit any of its affiliates (as such term is defined in Rule 144 under the 1933 Act) to, resell any of the Securities that have been reacquired thereby, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the 1933 Act.
(i) The Company will, so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 158 144(a)(3) under the 1933 Act, either (i) file reports and other information with the Commission under Section 13 or Section 15(d) of the 1933 Act Regulations 1934 Act, or (“Rule 158”)ii) in the event the Company is not subject to Section 13 or Section 15(d) of the 1934 Act, furnish to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale prospective purchasers of the Securities in designated by such holders, upon request of such holders or such prospective purchasers, the manner specified in the Prospectus information required to be delivered pursuant to Rule 144A(d)(4) under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered permit compliance with Rule 144A in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 resale of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) Securities. For a period of five years after the Closing Time, the Company will furnish make available to the Underwriter Initial Purchasers upon request copies of all annual reports, quarterly such reports and current reports filed by the Company information, together with the Commission, such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders generallythe holders of the Securities issued by it.
(j) If requested by the Initial Purchasers, and such other public information concerning the Bank or the Company as will use its best efforts in cooperation with the Underwriter may reasonably requestInitial Purchasers to permit the Securities sold in transactions described in Section 2(d)(ii)(A) hereof to be eligible for clearance and settlement through The Depository Trust Company.
(k) The Company Each Security will provide bear the following legend until such legend shall no longer be necessary or advisable because such Security is no longer subject to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors andrestrictions on transfer described therein: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, upon written requestAS AMENDED (THE "SECURITIES ACT"), the Company’s annual reports on Form 10-K or Form 10-KSBOR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, as applicableSOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CITADEL BROADCASTING COMPANY ("THE COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq apply the net proceeds from the sale of companies that have issued securities that are quoted on the Nasdaq National MarketSecurities as set forth in the Offering Memorandum under the heading "Use of Proceeds."
(m) The Prior to the Closing Time, the Company shall cause will not issue any press release or other communications directly or indirectly or hold any press conference with respect to be prepared by its counsel one the Company, the condition, financial or more “blue sky” surveys (eachotherwise, a “Blue Sky Survey”) for use in connection with or the offering earnings, business affairs or business prospects of the Company, without the prior written consent of Prudential Securities as contemplated by Incorporated, unless in the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each judgment of the Company and its counsel, and after notification to the UnderwriterInitial Purchasers, such press release or communication is required by law.
(n) If, at During the time period beginning from the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance date of the Securities, prepare Offering Memorandum and distribute continuing to and including the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) date 180 days after the date of this Agreementthe Offering Memorandum, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issueoffer, sell, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the UnderwriterInitial Purchasers, any shares ofsecurities of the Company that are substantially similar to the New Securities, or any securities of the Company convertible or exchangeable into securities of the Company substantially similar to the New Securities; provided, however, the foregoing shall not apply to (i) notes or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described preferred stock issued in the Prospectus.Notes Exchange Offer or the Preferred Stock Exchange Offer;
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the Underwriter you as follows:
(a) The Company has furnished or will use its best efforts furnish to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) you as many copies of the receipt of any comments Offering Memorandum, as it may then be amended or supplemented, as you may reasonably request from the Commission’s staff, (iii) of any request of the Commission’s staff time to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momenttime.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus Offering Memorandum (including other than amendments of the documents incorporated by reference into to the Registration Statement Offering Memorandum or the Prospectus) filing of subsequent documents under the 1934 Act), of which the Underwriter you shall not have previously have been advised and furnished a copy, or to which the Underwriter you or your counsel for the Underwriter shall reasonably object. The Company shall not file any document under the 1934 Act before the completion of the offering of the Securities by you, if such document would be deemed to be incorporated by reference in the Offering Memorandum and if the filing of such document would cause the Offering Memorandum, as amended or supplemented by the filing of such document, to contain an untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) The Company has furnished or will furnish If at any time prior to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act you to be delivered in connection with sales of the Securitiespurchasers who are not your affiliates, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter you or counsel for the Company, Company to amend the Registration Statement or amend or supplement the Prospectus Offering Memorandum in order that the Prospectus Offering Memorandum 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission and furnish you such number of copies as you may reasonably request. Except as otherwise required by the preceding sentence, the Company will not be obligated to update the Offering Memorandum. Such updating may be done by means of the filing of one or to make more documents under the Registration Statement or 1934 Act which are deemed incorporated by reference in the Prospectus comply with such requirementsOffering Memorandum.
(fd) Notwithstanding any provision of paragraph (b) or (c) to the contrary, however, the Company's obligations under paragraphs (b) and (c) shall terminate on the earliest to occur of (i) the third anniversary of the Closing Time, (ii) the closing date of an Exchange Offer pursuant to the Registration Rights Agreement, (iii) the effective date of a Shelf Registration Statement pursuant to the Registration Rights Agreement and (iv) the date upon which you and your affiliates cease to hold Securities acquired by you as part of their initial distribution.
(e) The Company will use its reasonable best efforts, in cooperation with the Underwriteryou, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter you may designate designate, if any, and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration StatementOffering Memorandum; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Securities have been qualified as above provided.
(g) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(jf) For a period of five three years after the Closing Time, the Company will furnish to the Underwriter you copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders securityholders generally.
(g) Neither the Company nor any affiliate (as defined in Rule 501(b) of the 0000 Xxx) will solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising. With respect to those Securities sold in reliance on Regulation S, (A) none of the Company, its affiliates or any person acting on its or their behalf (other than you, as to whom the Company makes no representation) will engage in any directed selling efforts within the meaning of Regulation S and (B) each of the Company, its affiliates and each person acting on its or their behalf (other than you, as to whom the Company makes no representation) will comply with the offering restrictions requirement of Regulation S.
(h) Neither the Company nor any affiliate (as defined in Rule 501(b) of the 0000 Xxx) of the Company will offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the 1933 Act) which will be integrated with the sale of the Securities in a manner that would require the registration of the Securities under the 1933 Act at a time when such Securities are not so registered.
(i) The Company will not be or become, at any time prior to the expiration of three years after the Closing Time, an open-end investment trust, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended (the "Investment Company Act").
(j) During the period from the Closing Time to the earlier of (i) two years after the Closing Time, or (ii) the date of effectiveness of a registration statement as contemplated in the Registration Rights Agreement, the Company will not, and such other public information concerning will not permit any of its "affiliates" (as defined in Rule 144 under the Bank or 0000 Xxx) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company as or any of its affiliates and resold in a transaction registered under the Underwriter may reasonably request1933 Act.
(k) The Company will provide will, so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the 1933 Act, either (i) file reports and other information with the Commission under Section 13 or 15(d) of the 1934 Act, or (ii) in the event it is not subject to Section 13 or 15(d) of the 1934 Act, furnish to holders of the Common Stock annual reports containing financial statements audited Securities and prospective purchasers of Securities designated by the Company’s independent auditors andsuch holders, upon written requestrequest of such holders or such prospective purchasers, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicableinformation required to be delivered pursuant to Rule 144A(d)(4) under the 1933 Act to permit compliance with Rule 144A in connection with resales of the Securities.
(l) The Company will file use its reasonable best efforts in cooperation with Nasdaq all documents you to permit the Securities sold in transactions described in Section 2(c)(iv)(A) to be eligible for clearance and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Marketsettlement through The Depository Trust Company.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering Each of the Securities as contemplated by will bear the Prospectus and a copy following legend until, in the opinion of each Blue Sky Survey or surveys shall be delivered counsel to each of the Company and Company, such legend is no longer advisable because the UnderwriterSecurities are no longer subject to the restrictions on transfer described therein: THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE DATE OF ORIGINAL ISSUE HEREOF ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; PROVIDED THAT THE COMPANY SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE, PLEDGE OR TRANSFER PURSUANT TO CLAUSE (E) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION (IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY) OF COUNSEL SATISFACTORY TO THE COMPANY, AND CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the The Company will prepare, apply the net proceeds that it receives from the offer and file or transmit for filing with sale of the Commission Securities in accordance with Rule 430A and Rule 424(b), copies the manner set forth in the Offering Memorandum under the heading "Use of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omittedProceeds".
(o) The Company willhas been advised in writing by KPMG LLP, at its expense, subsequent independent public accountants to the issuance Company, that the consolidated financial statements and schedules audited by them and included in the Company's 1998 Form 10-K comply in form in all material respects with the applicable accounting requirements of the Securities, prepare 1934 Act and distribute to the Underwriter related published rules and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securitiesregulations thereunder.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representatives promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Certificates and their terms not otherwise specified in the preliminary prospectus or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as a representative of the Underwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representatives and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActCertificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) hereofto which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Certificates have been sold by the Underwriters, then prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Certificates and related Equipment Notes (as defined in the Note Purchase Agreement) or a class of pass through certificates junior to the Certificates and related equipment notes) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft owned by the Company (or exercisable rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Certificates, containing only information that describes the final terms of the Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectusoffering of the Certificates.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the you and with each Underwriter as follows:
(a) The If reasonably requested by you in connection with each offering of the Offered Securities, the Company will use its best efforts to cause prepare a Preliminary Prospectus Supplement containing such information as you and the Registration Statement to become effective Company deem appropriate, and, immediately following the execution of each Terms Agreement, the Company will prepare a Final Prospectus Supplement containing such information concerning the Offered Securities as you and will notify the Underwriter immediately, and confirm Company deem appropriate in connection with the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) offering of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposesOffered Securities. The Company will use every reasonable effort promptly transmit copies of such Prospectus Supplement to prevent the issuance Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters named therein as many copies of any the Prospectus and such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentProspectus Supplement as you shall reasonably request.
(b) The Company will not at any time file or make any amendment prepare an Issuer Free Writing Prospectus in accordance with this Section in the form of a Final Term Sheet (attached to the Registration Statement or, if applicable Terms Agreement as Schedule 1 thereto) with respect to the Company has elected Offered Securities and will file such Final Term Sheet with the Commission pursuant to rely upon Rule 430A of 433 under the 1933 Act Regulations (“Rule 430A”)not later than the time specified by such Rule. Before using, authorizing, approving, referring to or filing any amendment Issuer Free Writing Prospectus, the Company will furnish the Underwriters a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or supplement to the file any such Issuer Free Writing Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably objectUnderwriters object in their reasonable judgment.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions in the United States as the Underwriter you may designate and to maintain such qualifications in effect for a period of not less than one year from as long as may be required for the effective date distribution of the Registration StatementOffered Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above provided.
(gd) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but in any event not later than 90 days eighteen months after the close effective date of the period covered therebyRegistration Statement, an earnings statement of the Company and its subsidiaries (in form which need not be audited) complying with Section 11(a) of the provisions 1933 Act (including, at the option of the Company, Rule 158158 under the 1933 Act).
(e) covering a period of at least 12 months beginning after Between the effective date of the Registration Statement but not later than applicable Terms Agreement and the first day Closing Time with respect to the Offered Securities, the Company will not, without your prior consent, offer or sell, or enter into any agreement to sell, any securities of the Company’s fiscal quarter next following Company which are substantially similar to the Offered Securities, other than as set forth in such effective dateTerms Agreement.
(hf) To the extent specified in the Terms Agreement, the Company will use its best efforts to effect the authorization of the Offered Securities for listing on the listing exchange specified in the applicable Final Term Sheet as soon as reasonably practicable.
(g) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”also covenants with you and with each Underwriter as follows:
(i) The CompanyCompany will not at any time file or make any amendment to the Registration Statement or any amendment or supplement to the Prospectus, during of which you shall not have previously been advised and furnished a copy or to which you or counsel for the period Underwriters shall reasonably object; provided, however that if the Underwriters have made a good faith objection to the filing of any such amendment or supplement and the Company reasonably believes such filing is required by applicable law or regulation, the Company shall be permitted to make such filing.
(ii) The Company has furnished or will furnish to you as many signed copies of the Registration Statement as originally filed and of all amendments thereto, including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus, whether filed before or after the Registration Statement became effective, and signed copies of all consents and certificates of experts, as you may reasonably request and has furnished or will furnish to you, for each other Underwriter, one conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits).
(iii) The Company will comply to the best of its ability with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement, the applicable Terms Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stockthe Offered Securities any event shall occur or condition exist as a result of which it is necessary, will use its best efforts to cause a registration statement in the opinion of counsel for the Common Stock Underwriters and counsel for the Company, to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time amend the Registration Statement becomes effective.
(j) For or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a period material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of five years after the Closing Timecircumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports promptly prepare and current reports filed by the Company file with the Commission, subject to Section 4(g)(i), such other documents, reports, proxy statements and information amendment or supplement as shall may be furnished by necessary to correct such untrue statement or omission or to make the Company to its stockholders generally, and such other public information concerning the Bank Registration Statement or the Company as the Underwriter may reasonably requestProspectus comply with such requirements.
(kiv) The Company will provide will, while the completion of the distribution of any Offered Securities is pending, notify each of you promptly, and confirm the notice in writing, of (a) the effectiveness of any amendment to the holders Registration Statement, (b) the mailing or the delivery to the Commission for filing of any supplement to the Common Stock annual reports containing financial statements audited Prospectus or any document to be filed pursuant to the 1934 Act, (c) the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any supplement to the Prospectus, (d) any request by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) Commission for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (including an amended Prospectuse) containing all information so omittedthe issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(oh) The Notwithstanding any other term of the Terms Agreement or any other agreements, arrangements, or understandings between the Company willand each Underwriter, at its expensethe Company acknowledges, subsequent accepts, and agrees, to the issuance extent applicable, to be bound by:
(1) the effect of the Securitiesexercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of a party, prepare that may include and distribute result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion of the BRRD Liability into shares, other securities or other obligations of a party or another person (and the issue to or conferral on the other party or parties of such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the Terms Agreement;
(iii) the cancellation of the BRRD Liability;
(iv) the amendment or alteration of the amounts due, including any interest, if applicable, thereon, or the dates on which any payments are due, including by suspending payment for a temporary period; and
(2) the variation of the terms of any Terms Agreement if necessary by the Relevant Resolution Authority, to give effect to the Underwriter and counsel to the Underwriter a bound volume containing copies exercise of the documents used Bail-in connection with Powers by the issuance of Relevant Resolution Authority. For these purposes, the Securities.
(p) The Company will not“Bail-in Powers” is any write-down, prior to the Option Closing Date or thirty (30) days after the date of this Agreementconversion, whichever occurs firsttransfer, incur any material liability or obligation, direct or contingentmodification, or enter into suspension power existing from time to time under, and exercised in compliance with, any material transactionlaws, other than in regulations, rules or requirements under Directive 2014/59/EU establishing a framework for the ordinary course recovery and resolution of businesscredit institutions and investment firms (“BRRD”), or any transaction with a related party which is required as amended from time to be disclosed in time, and the Prospectus instruments, rules and standards created thereunder, pursuant to Item 404 which: (i) any obligation of Regulation S-K (or Regulation S-Ba party can be reduced, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.cancelled,
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company will use its best efforts shall advise the Representative promptly of any proposal to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representative, which consent will not be unreasonably withheld. If, at any post-effective amendment time after the public offering of the Class A Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Registration StatementSecurities Act) is required by law to be delivered in connection with sales of the Class A Certificates by an Underwriter or a dealer, any event shall have become effectiveoccur as a result of which it is necessary to amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to the Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Company) to which Class A Certificates may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) During the period mentioned in paragraph (a) above, the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (ivv) receipt by the Company of any notice of 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 any preliminary prospectusStatement, or of the suspension of the qualification of the Securities Class A Certificates for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings proceeding for any of such purposes. The ; and the Company will agrees to use every reasonable effort to prevent the issuance of any such stop order or and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order preventing or suspending such use qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(bc) The Company will not at any time file or make any amendment to During the Registration Statement orperiod mentioned in paragraph (a) above, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the each Underwriter as many signed and conformed copies of the Registration Statement (as originally filed filed), the Time of Sale Prospectus, the Prospectus, and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all amendments and supplements to such documents (excluding all exhibits and documents filed therewith or incorporated by reference therein) and signed as many conformed copies of all consents and certificates of experts experts, in each case as the soon as available and in such quantities as each Underwriter may reasonably requestrequests.
(d) The Promptly following the execution of this Agreement, the Company will deliver prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the Class A Certificates and their terms not otherwise specified in the preliminary prospectus or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of Basic Prospectus included in the Registration Statement, as many copies the name of each preliminary prospectus Underwriter and the face amount of the Class A Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as a representative of the Underwriters in connection with the offering, the price at which the Class A Certificates are to be purchased by the Underwriters from the Class A Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Underwriter may reasonably request, Representative and the Company hereby consents to deem appropriate in connection with the use offering of such copies for purposes permitted by the 1933 ActClass A Certificates. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of timely transmit copies of the Prospectus (as supplemented or amended) as to the Underwriter may reasonably requestCommission for filing pursuant to Rule 424 under the Securities Act.
(e) The Company will comply shall furnish to each Underwriter a copy of each free writing prospectus relating to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion offering of the distribution Class A Certificates prepared by or on behalf of, used by, or referred to by the Company and shall not use or refer to any proposed free writing prospectus to which the Representative reasonably objects.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Securities as contemplated in this Agreement and in the Prospectus. If, Class A Certificates at any a time when a prospectus Prospectus is required by the 1933 Act not yet available to be delivered in connection with sales of the Securities, prospective purchasers and any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Company, necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary any “issuer free writing prospectus” in order to make the statements therein not misleadingtherein, in the light of the circumstances existing at the time when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time is necessary to amend the Registration Statement or amend or supplement the Time of Sale Prospectus in order or any “issuer free writing prospectus” to comply with the requirements of the 1933 Act or the 1933 Act Regulationsapplicable law, the Company will shall forthwith prepare, file promptly prepare and file with the CommissionCommission and furnish, subject at the Company’s expense, to Section 3(bthe Underwriters and to the dealers (whose names and addresses the Representative will furnish to the Company) hereofto which Class A Certificates may have been sold by the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such amendment “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or supplement such “issuer free writing prospectus” as may so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be necessary to correct misleading in any material respect or so that the Time of Sale Prospectus or such untrue statement “issuer free writing prospectus”, as so amended or omission or to make supplemented, will no longer conflict with the Registration Statement Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with such requirementsapplicable law.
(fg) The Company will use its best effortsshall, in cooperation with the UnderwriterUnderwriters, endeavor to qualify arrange for the Securities qualification of the Class A Certificates for offering offer and sale under the applicable securities or “blue sky” laws of such states and other jurisdictions in the United States as the Underwriter may designate Representative reasonably designates and will endeavor to maintain such qualifications in effect so long as required for a period the distribution of not less than one year from the effective date of the Registration Statementsuch Class A Certificates; provided, however, provided that the Company shall not be obligated required to file any general consent to service of process or to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified securities, (ii) file a general consent to service of process or to (iii) 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 Securities have been qualified as above providedjurisdiction.
(gh) The During the period of ten years after the Closing Date, the Company will make generally availablepromptly furnish to each Underwriter, within the meaning upon request, copies of Rule 158 of the 1933 Act Regulations (“Rule 158”), to the holders of the Securities all Annual Reports on Form 10-K and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings any definitive proxy statement of the Company and its subsidiaries (in form complying including any successor by merger of the Company) filed with the provisions Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of Rule 158) covering a period of at least 12 months beginning after the initial effective date of the Registration Statement but not later than occurs before all the first day Class A Certificates have been sold by the Underwriters, then prior to the third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Company’s fiscal quarter next following such effective date.
(h) The Company will use the net proceeds received by it from the sale of the Securities Class A Certificates to continue without interruption, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(i) The Company, during the period when a prospectus is required by the 1933 Act which case references herein to be delivered in connection with sales of Common Stock, will use its best efforts to cause a registration statement for the Common Stock to be effective and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of the 1934 Act subsequent to the time the Registration Statement becomes shall include the new registration statement as it shall become effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission, such other documents, reports, proxy statements and information as shall be furnished by the Company to its stockholders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Company will provide to the holders of the Common Stock annual reports containing financial statements audited by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10-K or Form 10-KSB, as applicable.
(l) The Company will file with Nasdaq all documents and notices required by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National Market.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (each, a “Blue Sky Survey”) for use in connection with the offering of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omitted.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after Between the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after Agreement and the Closing TimeDate, the Company shall not, without the prior written consent of the UnderwriterRepresentative, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Class A Certificates or a class of pass through certificates junior to the Class A Certificates and related equipment notes) or as debt securities which may be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for similar debt securities registered under the Securities Act), any shares ofequipment notes, pass through certificates, equipment trust certificates or any securities convertible into equipment purchase certificates secured by aircraft, spare engines or exercisable spare parts owned by the Company (or rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Class A Certificates, containing only information that describes the final terms of the Class A Certificates or the offering in a form consented to by the Representative and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for shares of, Common Stock other than in connection with any plan or arrangement the offering of the Class A Certificates.
(l) The Company shall use the proceeds from the sale of the Series A Equipment Note as described under the heading “Use of Proceeds” in the Time of Sale Prospectus.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants with the each Underwriter as follows:
(a) The If reasonably requested by you in connection with the offering of the Offered Securities, the Company will use its best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission’s staff, (iii) of any request of the Commission’s staff to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of 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 any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the Registration Statement or, if the Company has elected to rely upon Rule 430A of the 1933 Act Regulations (“Rule 430A”), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished prepare a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Company has furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Company will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus supplement containing such information as the Underwriter may reasonably request, you and the Company hereby consents to deem appropriate and, immediately following the use execution of such copies for purposes permitted by this Agreement, the 1933 Act. The Company will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the prepare a Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability Supplement that complies with the 1933 Act and the 1933 Act RegulationsRegulations and that sets forth the principal amount of the Offered Securities and their terms not otherwise specified in the Indenture, the name of each Underwriter participating in the offering and the 1934 principal amount of the Offered Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance any delayed delivery arrangements and such other information as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the 1934 Act Regulations, so Underwriters as to permit many copies of any preliminary prospectus supplement and the completion of the distribution of the Securities Prospectus as contemplated in this Agreement and in the Prospectus. If, you shall reasonably request.
(b) If at any time when a prospectus the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the 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 not misleading, misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof3(f), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirementsrequire ments.
(c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(f), file promptly all documents required to be filed with the Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934 Act.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; and the Company will furnish you with copies of any such amendment, supplement or other document at a reasonable time in advance of filing, except any current report on Form 8-K filed with the Commission with respect to a press release issued by the Company that is not reasonably expected to have a material effect on the Company or the price of the Common Stock; provided, however, that the Company shall inform you of its intention to file documents pursuant to Section 14(d) of the 1934 Act and shall furnish you with copies of such documents immediately upon the filing thereof; and provided further that you or your counsel shall not be entitled to object thereto other than pursuant to Section 3(b).
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration State ment, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will use every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you one signed copy of the Registration Statement (as originally filed), of any Rule 462(b) Registration Statement, and of all amendments thereto, whether filed before or after the Registration Statement became effective, copies of all exhibits and documents filed therewith or incorporated by reference therein (through the end of the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities) and signed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish to you, for each of the Underwriters, ten conformed copies of the Registration Statement (as originally filed), of any Rule 462(b) Registration Statement and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the UnderwriterUnderwriters, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter 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 Statementhereof; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation 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 Offered Securities have been qualified as above providedpro vided. The Company will also supply you with such information as is necessary for the determination of the legality of the Offered Securities for investment under the laws of such jurisdictions as you may request.
(gh) The Company will make generally available, within the meaning of Rule 158 of the 1933 Act Regulations (“Rule 158”), available to the its security holders of the Securities and the Underwriter as soon as practicable, but not later than 90 45 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158158 of the 1933 Act Regula tions), covering (i) covering a period of at least 12 months beginning after the effective date of the Registration Statement (or, if applicable, any Rule 462(b) Registration Statement) and covering a period of 12 months beginning after the effective date of any post-effective amendment to the Registration Statement but not later than the first day of the Company’s 's fiscal quarter next following such respective effective date.
dates and (hii) The Company will use a period of 12 months beginning after the net proceeds received by it from date of this Agreement but not later than the sale first day of the Securities in Company's fiscal quarter next following the manner specified in the Prospectus under the caption “Use date of Proceedsthis Agreement.”
(i) The CompanyIf and to the extent specified in Schedule II hereto, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Common Stock, Company will use its best efforts to cause a registration statement for the Common Stock Offered Securities to be effective duly authorized for listing on the New York Stock Exchange and will file promptly all documents required to be filed with the Commission pursuant to Section 13 and 14 of registered under the 1934 Act subsequent to the time the Registration Statement becomes effectiveAct.
(j) For a period of five two years after the Closing Time, the Company will furnish to the Underwriter you and, upon request, to each Underwriter, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Company with the Commission, and such other documents, reports, proxy statements reports and information as shall be furnished by the Company to its stockholders or security holders generally, and such other public information concerning the Bank or the Company as the Underwriter may reasonably request.
(k) The Between the date hereof and the Closing Time or such other date as may be specified in Schedule II, the Company will provide not, without your prior consent, offer or sell, or enter into any agreement to sell, any debt securities issued or guaranteed by the Company with a maturity of more than one year in any public offering (other than the Offered Securities). This limitation is not applicable to the holders public offering of the Common Stock annual reports containing financial statements audited tax exempt securities guaranteed by the Company’s independent auditors and, upon written request, the Company’s annual reports on Form 10Company or to such other public offering of long-K or Form 10-KSB, term debt as applicablemay be specified in Schedule II.
(l) The Company will file has agreed not to sell or otherwise dispose of, any shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, Common Stock [other than shares issuable upon conversion of the Debt Securities] without the prior written consent of [___________] on behalf of the Underwriters for a period of 90 days after the date of the Prospectus Supplement (except for Common Stock issued upon conversion of the 4 3/4% Convertible Senior Notes due 2003 or the Company's 3% Convertible Subordinated Notes Due 2002 or issued pursuant to the Company's stock option or employee benefit plans or issued by the Company in connection with Nasdaq all documents and notices required strategic acquisitions or issued or sold pursuant to employee benefit plans of the Company existing at the Closing Time or sold in connection with an employee's decision to direct that 401(k) contributions be invested in Common Stock, provided that any such shares in excess of 5% of the then outstanding shares of Common Stock shall remain subject to the foregoing restriction) or exercise any right to have securities of the Company registered by Nasdaq of companies that have issued securities that are quoted on the Nasdaq National MarketCompany under the 1933 Act.
(m) The Company shall cause to be prepared by its counsel one or more “blue sky” surveys (eachhas complied and will comply with all the provisions of Florida H.B. 1771, a “Blue Sky Survey”) for use in connection with the offering codified as Section 517.075 of the Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A, then the Company will prepareFlorida statutes, and file or transmit for filing with the Commission all regulations promulgated thereunder relating to issuers doing business in accordance with Rule 430A and Rule 424(b), copies of an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus) containing all information so omittedCuba.
(o) The Company will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Company will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K (or Regulation S-B, as applicable) of the Commission, except as contemplated by the Prospectus.
(q) The Company will not sell or issue, contract to sell or issue, or otherwise dispose of, for a period of 180 days after the Closing Time, without the prior written consent of the Underwriter, any shares of, or any securities convertible into or exercisable for shares of, Common Stock other than in connection with any plan or arrangement described in the Prospectus.
Appears in 1 contract
