Certain Covenants of the Company. The Company covenants and agrees with the several Underwriters: (a) The Company, subject to Section 6(b), will comply with the requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Bonds shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing.

Appears in 5 contracts

Samples: Underwriting Agreement (PPL Electric Utilities Corp), Underwriting Agreement (PPL Corp), Underwriting Agreement (PPL Corp)

Appears in 4 contracts

Samples: Underwriting Agreement (DT Cloud Acquisition Corp), Underwriting Agreement (DT Cloud Acquisition Corp), Underwriting Agreement (DT Cloud Acquisition Corp)

Appears in 3 contracts

Samples: Underwriting Agreement (Jade Value Acquisition Corp), Underwriting Agreement (Jade Value Acquisition Corp), Underwriting Agreement (Apollo Acquisition Corp)

Certain Covenants of the Company. The Company covenants and agrees with the several Underwriters: (a) ~~The Company, subject~~ Subject to Section 6(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Bonds shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The Company will~~ To give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act, Securities Act or ~~Exchange~~ Securities Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) substantially in the form attached as Annex I hereto reflecting the final terms of the Bonds~~, in form and substance reasonably satisfactory to the Representatives~~, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in ~~The City of New York)~~accordance with Rule 433; provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing. (c) To furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as each Underwriter may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives reasonably object in writing. (e) To use its best efforts to qualify the Bonds and to assist in the qualification of the Bonds by you or on your behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as you may designate, to continue such qualification in effect so long as required for the distribution of the Bonds and to reimburse you for any expenses (including filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the Bonds for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that the Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Bonds, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) To promptly deliver to you a true and correct copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as you may reasonably request; (g) If at any time prior to the completion of the sale of the Bonds by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company promptly (i) will notify the Representatives of any such event; (ii) subject to the requirements of paragraph (b) of this Section 6, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement to the Prospectus (x) that is necessary in connection with such a delivery of a supplemental or amended Prospectus more than nine months after the date of this Agreement or (y) that relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Bonds and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Bonds has been completed when they are advised by you that no such Underwriter or dealer retains any Bonds. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Bonds) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (h) As soon as practicable, to make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Securities Act; (i) To pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 6(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Bonds to the Underwriters at the place designated in Section 5 hereof, any fees and expenses relating to the eligibility and issuance of the Bonds in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Bonds, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Bonds; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 6(g) above) any amendment or supplement thereto, to the Underwriters; (iii) any and all fees payable in connection with the rating of the Bonds; (iv) all costs and expenses relating to the creation, filing or perfection of the security interests under the Indenture; and (v) the reasonable fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Bonds; (j) During the period from the date of this Agreement through the Closing Date, the Company shall not, without the Representatives’ prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Bonds, any security convertible into or exchangeable into or exercisable for Bonds or any debt securities substantially similar to the Bonds (except for the Bonds issued pursuant to this Agreement); and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 3 contracts

Samples: Underwriting Agreement (PPL Electric Utilities Corp), Underwriting Agreement (PPL Corp), Underwriting Agreement (PPL Electric Utilities Corp)

Appears in 2 contracts

Samples: Underwriting Agreement (PPL Electric Utilities Corp), Underwriting Agreement (PPL Electric Utilities Corp)

Certain Covenants of the Company. The Company covenants and agrees with the several Underwriters: (a) ~~The Company, subject~~ Subject to Section 6(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Bonds shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The Company will~~ To give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act, Securities Act or ~~Exchange~~ Securities Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) substantially in the form attached as Annex I hereto reflecting the final terms of the Bonds~~, in form and substance reasonably satisfactory to the Representatives~~, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in ~~The City of New York)~~accordance with Rule 433; provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing. (c) To furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as each Underwriter may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives reasonably object in writing. (e) To use its best efforts to qualify the Bonds and to assist in the qualification of the Bonds by you or on your behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as you may designate, to continue such qualification in effect so long as required for the distribution of the Bonds and to reimburse you for any expenses (including filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the Bonds for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that the Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Bonds, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) To promptly deliver to you a true and correct copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as you may reasonably request; (g) If at any time prior to the completion of the sale of the Bonds by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company promptly (i) will notify the Representatives of any such event; (ii) subject to the requirements of paragraph (b) of this Section 6, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement to the Prospectus (x) that is necessary in connection with such a delivery of a supplemented or amended Prospectus more than nine months after the date of this Agreement or (y) that relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Bonds and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Bonds has been completed when they are advised by you that no such Underwriter or dealer retains any Bonds. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Bonds) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (h) As soon as practicable, to make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Securities Act; (i) To pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 6(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Bonds to the Underwriters at the place designated in Section 5 hereof, any fees and expenses relating to the eligibility and issuance of the Bonds in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Bonds, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Bonds; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 6(g) above) any amendment or supplement thereto, to the Underwriters; (iii) any and all fees payable in connection with the rating of the Bonds; (iv) all costs and expenses relating to the creation, filing or perfection of the security interests under the Indenture; and (v) the reasonable fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Bonds; (j) During the period from the date of this Agreement through the Closing Date, the Company shall not, without the Representatives’ prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Bonds, any security convertible into or exchangeable into or exercisable for Bonds or any debt securities substantially similar to the Bonds (except for the Bonds issued pursuant to this Agreement); and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 2 contracts

Samples: Underwriting Agreement (LG&E & KU Energy LLC), Underwriting Agreement (LG&E & KU Energy LLC)

Certain Covenants of the Company. ~~The~~ In further consideration of the agreements of the Underwriters herein contained, the Company covenants ~~and agrees with the several Underwriters~~as follows: (a) ~~The Company, subject~~ To use its best efforts to ~~Section 6(b), will comply with the requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing, (i) when~~ cause any post-effective amendments to the Registration Statement to become effective as promptly as possible. During the time when a Prospectus is required to be delivered under the Act, the Company will comply so far as it is able with all requirements imposed upon it by the Act and the rules and regulations of the Commission to the extent necessary to permit the continuance of sales of or dealings in the Securities in accordance with the provisions hereof and of the Prospectus. (b) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits. (c) As soon as the Company is advised thereof, the Company will advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement, (ii) any request made by the Commission for amendments to the Registration Statement or ~~new registration statement relating to the Bonds shall 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~~for additional information with respect thereto, (iii) the suspension of ~~any request by~~ qualification of the ~~Commission~~ Securities for ~~any amendment to the Registration Statement~~ sale under Blue Sky or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional informationstate securities laws, and (iv) the entry of ~~the issuance by the Commission of any~~ a stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or ~~threatening of~~ threat or any proceedings for ~~any of~~ that purpose and, if such ~~purposes or of any examination pursuant~~ a stop order should be entered by the Commission, to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable effort to ~~prevent~~ obtain the lifting or removal thereof. (d) To deliver to the Underwriters, without charge, as soon as practicable, and from time to time during such period of time (not exceeding nine months) after the date of the Prospectus as they are required by law to deliver a prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date of the Prospectus, to furnish to the Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act. (e) For such period of time (not exceeding nine months) after the date of the Prospectus as the Underwriters are required by law to deliver a prospectus in respect of the Securities, if any event shall have occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it becomes necessary to amend or supplement the Prospectus to comply with law, to forthwith prepare and file with the Commission an appropriate amendment or supplement to the Prospectus and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested. (f) To make generally available to the Company's security holders, as soon as practicable, an "earning statement" (which need not be audited by independent public accountants) covering a twelve-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, which shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (g) To use its best efforts to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may designate and to pay (or cause to be paid), or reimburse (or cause to be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the date hereof), provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or as a securities dealer or to file a general consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome. (h) To pay all expenses, fees and taxes (other than transfer taxes on sales by the respective Underwriters) in connection with the issuance and delivery of the Securities, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (g) of this Section 5) of Skadxxx Xxxx, xxunsel to the Underwriters, only in the events provided in paragraph (i) of this Section 5, the Underwriters hereby agreeing to pay such fees and disbursements in any ~~stop order~~ other event, and that except as provided in Section (i), the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder. (i) If the Underwriters shall not take up and pay for the Securities due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 11 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Skadxxx Xxxx, xxunsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Securities due to the failure of the Company to comply with any ~~stop order is issued~~of the conditions specified in Section 3 hereof, to ~~obtain~~ reimburse the ~~lifting thereof at~~ Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $3,000, incurred in connection with the ~~earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required~~ financing contemplated by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b))this Agreement. (bj) ~~The Company will give~~ Prior to the ~~Representatives notice~~ termination of ~~its intention~~ the offering of the Securities, to not file ~~or prepare~~ any amendment to the Registration Statement or ~~new registration statement relating~~ supplement to the ~~Bonds~~ Prospectus (including the Basic Prospectus) unless the Company has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, or any ~~amendment~~such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing, ~~supplement or revision to either any preliminary prospectus~~ after consultation with the Representatives. (~~including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective~~k) ~~or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will~~ To furnish the Representatives with copies of ~~any such~~ all documents ~~a reasonable amount of time prior~~ required to ~~such proposed filing or use, as~~ be filed with the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act ~~or Exchange Act Regulations from the Applicable Time~~ subsequent to the ~~Closing Date~~ time the Registration Statement becomes effective and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the ~~close~~ termination of ~~business two Business Days after~~ the ~~date hereof~~ offering of the Securities. (~~“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated~~ l) So long as may be required by law ~~to close~~ for distribution of the Securities by the Underwriters or by any dealers that participate in ~~The City of New York); provided that~~ the distribution thereof, the Company ~~shall furnish~~ will comply with all requirements under the ~~Representatives~~ Exchange Act relating to the timely filing with ~~copies~~ the Commission of ~~any such Final Term Sheet a reasonable amount~~ its reports with the Commission of ~~time prior~~ its reports pursuant to ~~such proposed filing~~ Section 13 of the Exchange Act and ~~will not use or file any such document~~ of its proxy statements pursuant to ~~which~~ Section 14 of the ~~Representatives shall reasonably object in writing~~Exchange Act.

Appears in 2 contracts

Samples: Underwriting Agreement (CNS Energy Trust Iii), Underwriting Agreement (CMS Energy Trust V)

Certain Covenants of the Company. The Company covenants and agrees with the several ~~Underwriters~~Underwriters as follows: (a) The Company, subject to Section 6(b), will comply with the requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Notes shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement and/or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the ~~Bonds~~Notes. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the ~~Bonds~~ Notes within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Notes or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) substantially in the form attached as Annex I hereto reflecting the final terms of the ~~Bonds~~Notes, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing.

Appears in 2 contracts

Samples: Underwriting Agreement (PPL Energy Supply LLC), Underwriting Agreement (PPL Energy Supply LLC)

Certain Covenants of the Company. ~~The Company covenants and agrees with the several Underwriters:~~ (a) ~~The Company~~If the EChapman Registration Statement has not yet been declared effective on the date of this Agreement, ~~subject~~ the Company will use its best efforts to ~~Section 6(b)~~cause the EChapman Registration Statement and any amendments thereto to become effective as promptly as possible, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b) or Rule 434, the Company will ~~comply~~ file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the prescribed time period and will provide evidence satisfactory to you of such timely filing. If the Company elects to rely on Rule 434, the Company will prepare and file a term sheet that complies with the requirements of Rule ~~430B and will notify the Representatives immediately, and confirm the notice in writing,~~ 434. (i) when ~~any post-effective amendment to~~ the EChapman Registration Statement ~~or new registration statement relating to the Bonds shall~~ and any amendments thereto 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, (iii~~) of any request by the Commission for any amendment of or supplement to the EChapman Registration Statement or the Prospectus or for any additional information, (iii) of the mailing or the delivery to the Commission for filing of ~~a new registration statement or~~ any amendment of or supplement to the ~~Prospectus~~ EChapman Registration Statement or ~~any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information~~the Prospectus, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the EChapman Registration Statement or ~~such new registration statement~~ any post-effective amendments thereto or of ~~any order preventing~~ the initiation, or ~~suspending~~ the ~~use~~ threatening, of any ~~preliminary prospectus~~proceedings therefor, or (v) of the receipt of any comments from the Commission and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the ~~Bonds~~ Shares for ~~offering or~~ sale in any ~~jurisdiction,~~ jurisdiction or of the initiation or threatening of any ~~proceedings~~ proceeding for that purpose. If the Commission shall propose or enter a stop order at any ~~of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if~~ time, the Company ~~becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company~~ will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable effort~~ use its best efforts to prevent the issuance of any such stop order and, if ~~any stop order is~~ issued, to obtain the lifting ~~thereof at the earliest possible moment~~of such order as soon as possible. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective will not file any amendment to the EChapman Registration Statement or on any amendment of or supplement to the ~~cover page of a~~ Prospectus (including the prospectus required to be filed pursuant to Rule 424(b))) or Rule 434) or any amendment of or supplement to any Preliminary Prospectus that differs from the prospectus on file at the time of the effectiveness of the EChapman Registration Statement before or after the effective date of the EChapman Registration Statement to which you shall reasonably object in writing after being timely furnished in advance a copy thereof. (b) ~~The Company will give the Representatives notice of its intention to file or prepare~~ If at any ~~amendment to the Registration Statement or new registration statement~~ time when a prospectus relating to the ~~Bonds~~ Shares is required to be delivered under the Securities Act any event shall have occurred as a result of which any Preliminary Prospectus as then amended or ~~any amendment~~supplemented or the Prospectus as then amended or supplemented would, ~~supplement or revision to either any preliminary prospectus (including any prospectus included~~ in the ~~Original Registration Statement~~ judgment of the Underwriters or ~~amendment thereto~~ the Company include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to The Xxxxxxx Co. _________, 2000 Page 18 make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary at ~~the~~ any time ~~it became effective)~~ to amend or ~~to the~~ supplement any Preliminary Prospectus, ~~whether pursuant~~ the Prospectus or the Xxxxxxx Registration Statements to comply with the Securities ~~Act, the Exchange~~ Act or ~~otherwise~~the Securities Act Regulations, ~~and~~ the Company will ~~furnish~~ notify you promptly and prepare and file with the ~~Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing~~ Commission an appropriate amendment or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet supplement (~~the “Final Term Sheet”) reflecting the final terms of the Bonds,~~ in form and substance reasonably satisfactory to you) which will correct such statement or omission and will use its best efforts to have any amendment to the ~~Representatives~~Registration Statement declared effective as soon as possible. (c) The Company will promptly deliver to you two signed copies of the EChapman Registration Statement, including exhibits and all amendments thereto, and ~~shall file~~ the Company will promptly deliver to each of the Underwriters such ~~Final Term Sheet~~ number of copies of any preliminary prospectus, the Prospectus, the EChapman Registration Statement, and all amendments of and supplements to such documents, if any, as ~~an “Issuer Free Writing Prospectus”~~ they may reasonably request. (d) The Company will endeavor in good faith, in cooperation with you, at or prior to the ~~close~~ time of ~~business two Business Days~~ effectiveness of the EChapman Registration Statement, to qualify the Shares for offering and sale under the securities laws relating to the offering or sale of the Shares of such jurisdictions as you, as Representative, may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process. (e) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to you as soon as practicable, but not later than 45 days after the end of its fiscal quarter in which the first anniversary date ~~hereof~~ of the effective date of the EChapman Registration Statement occurs, an earnings statement (~~“Business Day” shall mean~~ in form complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of at least twelve consecutive months beginning after the effective date of the Registration Statement. (f) Except for the sale of the Additional Shares by the Selling Stockholder pursuant to the terms of this Agreement, and the issuance of the CHI Shares and the CCMHI Shares in Mergers pursuant to the CHI Registration Statement and the CCMHI Registration Statement, during the period of 180 days from the date hereof, the Company and the Selling Stockholder will not, directly or indirectly, to issue, sell, offer or agree to sell, grant any ~~day~~ option for the sale of, pledge, make any short sale or maintain any short position, establish or maintain a "put equivalent position" (within the meaning of Rule 16a1(h) under the Exchange Act), enter into any swap, derivative transaction or other ~~than a Saturday~~arrangement that transfers to another, ~~a Sunday~~ in whole or ~~a legal holiday~~ in part, any of the economic consequences of ownership of the Common Stock (whether any such transaction is to be settled by delivery of Common Stock, other securities, cash or ~~a day on which banking institutions~~ other consideration) or ~~trust companies are authorized~~ otherwise dispose of, any Common Stock (or ~~obligated by law~~ any securities convertible into, exercisable for or exchangeable for Common Stock) or any interest therein or announce any intention to ~~close in The City~~ do any of ~~New York);~~ the foregoing without the prior written consent of the Underwriters provided that the Company ~~shall~~ may, without such consent, (i) grant options or other awards pursuant to the Company's employee stock option plans, (ii) issue Common Stock upon the exercise of outstanding options or warrants to purchase shares of Common Stock (iii) issue Common Stock as consideration for acquisitions provided that prior to the issuance thereof, the recipient thereof agrees in writing to be bound by the same restrictions applicable to the Company for the remaining balance of such 180 day period or (iv) engage in market making activities in the ordinary course of its brokerage subsidiary's business. (g) During a period of three years from the effective date of the EChapman Registration Statement, the Company will furnish ~~the Representatives with~~ or make available to you copies of (i) all reports to its stockholders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission, the Nasdaq National Market or any ~~such Final Term Sheet a~~ national securities exchange. (h) The Company will apply its net proceeds from the sale of the Shares as set forth under the caption "Use of Proceeds" in the Prospectus. (i) The Company will use its best efforts to cause the Shares to be listed on the Nasdaq National Market. (j) The Company will report the use of its net proceeds from the Offering to the extent required pursuant to Rule 463 of the Securities Act Regulations. (k) If the Company elects to rely upon Rule 462(b) of the Securities Act Regulations, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Baltimore time, on the date of this Agreement, no stop order suspending the effectiveness of the EChapman Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and all requests for additional information on the part of the Commission shall have been complied with to the Representative's reasonable ~~amount~~ satisfaction. (l) The Company, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, shall file all documents required to be filed with the Commission pursuant to Section 13, 14, or 15 of the Exchange Act within the time ~~prior to such proposed filing~~ periods set forth in the Exchange Act and ~~will not use or file any such document to which~~ the ~~Representatives shall reasonably object in writing~~rules and regulations thereunder.

Appears in 2 contracts

Samples: Underwriting Agreement (Echapman Com Inc), Underwriting Agreement (Echapman Com Inc)

Certain Covenants of the Company. The Company covenants and agrees with ~~the several Underwriters~~each Underwriter as follows: (a) The ~~Company~~Company shall use its reasonable best efforts to cause the Registration Statement and any amendments thereto, ~~subject~~ if not effective at the time of execution of this Agreement, to ~~Section 6(b)~~become effective as promptly as possible. The Company will prepare the Prospectus in a form as to which the Underwriters have no reasonable objection, will comply with the requirements of Rule ~~430B~~ 430A and will file such Prospectus with the Commission pursuant to Rule 424(b) not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement. The Company will notify the ~~Representatives~~ Underwriters immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to~~ Statement, shall have become effective and of the ~~Bonds shall become effective, or any supplement to~~ filing of the Prospectus ~~or any amended Prospectus shall have been filed~~pursuant to Rule 424(b), (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the Prospectus or ~~any document incorporated by reference therein or otherwise deemed to be a part thereof or~~ for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement or~~ of any order preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the ~~Bonds~~ Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any ~~proceedings~~ proceeding for ~~any of~~ such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8))purpose. The Company will make every reasonable effort to prevent the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any ~~stop~~ such order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will ~~give~~ deliver to the ~~Representatives~~ Underwriters one manually executed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference into the Prospectus), such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits) as such Underwriters may reasonably request and copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus. (c) The Company will furnish to the Underwriters, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act, such additional number of copies of the Prospectus (as amended or supplemented, if applicable) as they may reasonably request for the purposes contemplated by the 1933 Act or the 1933 Act Regulations. (d) The Company will deliver to the Underwriters notice of ~~its~~ their intention to prepare or file ~~or prepare~~ any amendment to the Registration Statement ~~or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus~~ (including any post-effective amendment) or any amendment or supplement to the Prospectus which the Company proposes for use by the Underwriters in connection with the offering of the Securities and which differs from the prospectus ~~included in~~ on file at the ~~Original Registration Statement or amendment thereto~~ Commission at the time it the Registration Statement became effective~~) or to the Prospectus~~, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the ~~Securities Act~~1933 Act Regulations, ~~the Exchange Act or otherwise, and the Company~~ will furnish the ~~Representatives~~ Underwriters and counsel for the Underwriters with copies of any such ~~documents~~ amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such ~~document~~ prospectus to which the ~~Representatives~~ Underwriters or counsel for the Underwriters shall reasonably ~~object~~ object. (e) If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus (as then amended or supplemented) in ~~writing.~~ order to ensure that the Prospectus does not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or it is necessary to amend or supplement the Prospectus to comply with the 1933 Act or any other law, the Company will forthwith prepare and furnish, at the Company's expense, to the Underwriters, 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 such other law, as the case may be. (f) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14, or 15 of the 1934 Act within the periods required by the 1934 Act so as to permit the completion of the distribution of the Securities as contemplated herein and in the Prospectus. (g) The Company will ~~give~~ use its reasonable best efforts to qualify the ~~Representatives notice~~ Securities and the shares of ~~its intention~~ Common Stock issuable upon conversion of the Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any Underwriter shall reasonably request and to ~~make any~~ pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such ~~filing pursuant to~~ qualification and the ~~Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies~~ printing of any ~~such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which~~ memoranda concerning the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York)aforesaid qualification; provided however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now subject. (h) During the period beginning on the date hereof and continuing to and including the date 90 days after the date of the Prospectus, the Company will not offer, sell, contract to sell or otherwise dispose of any securities of the Company substantially similar to the Securities or the Common Stock or any securities convertible into or exchangeable for, or which represent the right to receive, the Securities or the Common Stock (other than pursuant to employee stock option plans or stock option agreements existing on the date of this Agreement)without the prior written consent of the Underwriters. (i) The Company will furnish to the ~~Representatives~~ Trustee, and as required by the Indenture, to the holders of the Securities, as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of operations, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail. (j) During the period when the Securities are outstanding, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the 1940 Act. (k) The Company shall not enter into any contractual agreement with respect to the distribution of the Securities except for the arrangements with the Underwriters. (l) The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 90 days after the close of the period covered thereby, an "earnings statement" (which need not be audited) complying with the provisions of Rule 158 of the 1933 Act Regulations and covering a period of at least 12 consecutive months beginning on the first day of the Company's first full fiscal quarter after the effective date (as defined in Rule 158) of the Registration Statement. (m) The Company will reserve and keep available at all times, free of preemptive rights, shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue shares of its Common Stock upon conversion of the Securities. (n) The Company will use its reasonable best efforts to list, subject to notice of issuance, the shares of Common Stock issuable upon conversion of the Securities on the Nasdaq National Market ("Nasdaq") or the New York Stock Exchange. (o) The Company will use the proceeds received from the sale of the Securities in the manner specified in the Prospectus under the caption "Use of Proceeds." (p) For a period of five years after the Closing Time the Company will furnish to the Underwriters, to the extent not otherwise available on the Commission's web site or the Company's web site, copies of ~~any such Final Term Sheet a reasonable amount~~ all reports and communications delivered to the Company's shareholders or to holders of ~~time prior to such proposed filing~~ the Securities and will also furnish copies of all reports (excluding exhibits) filed with or furnished by the Company to the Commission or any securities exchange on which its securities are listed for trading, and all other reports and information furnished to its shareholders generally, not ~~use or file any~~ later than the time such ~~document~~ reports are first furnished to ~~which the Representatives shall reasonably object in writing~~its shareholders generally.

Appears in 2 contracts

Samples: Underwriting Agreement (Compudyne Corp), Underwriting Agreement (Compudyne Corp)

Certain Covenants of the Company. The Company covenants and agrees with the several Underwriters: (a) ~~The Company, subject~~ Subject to Section 6(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Bonds shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or ~~on the cover page of~~ in an exhibit to a prospectus filed pursuant to Rule 424(b)). (b) ~~The Company will~~ To give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act, Securities Act or ~~Exchange~~ Securities Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) substantially in the form attached as Annex I hereto reflecting the final terms of the Bonds~~, in form and substance reasonably satisfactory to the Representatives~~, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in ~~The City of New York)~~accordance with Rule 433; provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing. (c) To furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as each Underwriter may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives reasonably object in writing. (e) To use its best efforts to qualify the Bonds and to assist in the qualification of the Bonds by you or on your behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as you may designate, to continue such qualification in effect so long as required for the distribution of the Bonds and to reimburse you for any expenses (including filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the Bonds for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that the Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Bonds, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) To promptly deliver to you a true and correct copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as you may reasonably request; (g) If at any time prior to the completion of the sale of the Bonds by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company promptly (i) will notify the Representatives of any such event; (ii) subject to the requirements of paragraph (b) of this Section 6, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement to the Prospectus (x) that is necessary in connection with such a delivery of a supplemented or amended Prospectus more than nine months after the date of this Agreement or (y) that relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Bonds and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Bonds has been completed when they are advised by you that no such Underwriter or dealer retains any Bonds. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Bonds) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (h) As soon as practicable, to make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Securities Act; (i) To pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 6(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Bonds to the Underwriters at the place designated in Section 5 hereof, any fees and expenses relating to the eligibility and issuance of the Bonds in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Bonds, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Bonds; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 6(g) above) any amendment or supplement thereto, to the Underwriters; (iii) any and all fees payable in connection with the rating of the Bonds; (iv) all costs and expenses relating to the creation, filing or perfection of the security interests under the Indenture; and (v) the reasonable fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Bonds; (j) During the period from the date of this Agreement through the Closing Date, the Company shall not, without the Representatives’ prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Bonds, any security convertible into or exchangeable into or exercisable for Bonds or any debt securities substantially similar to the Bonds (except for the Bonds issued pursuant to this Agreement); and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 2 contracts

Samples: Underwriting Agreement (Louisville Gas & Electric Co /Ky/), Underwriting Agreement (Louisville Gas & Electric Co /Ky/)

Certain Covenants of the Company. ~~The~~ When it is first legally required to do so, the Company ~~covenants and agrees with~~ will register the ~~several Underwriters:~~ Company Common Stock under Section 12 of the Securities Exchange Act of 1934, as amended (~~a) The Company, subject to Section 6(b~~the "Exchange Act"), will ~~comply with~~ keep such registration effective and will timely file such information, documents and reports as the Securities and Exchange Commission (the "Commission") may require or prescribe under Section 13 of the Exchange Act, including the rules of the Commission promulgated thereunder. From and after the effective date of any registration statement filed by the Company under the Securities Act of 1933, as amended (the "Securities Act"), the Company will timely file such information, documents and reports as the Commission may require under Section 13 or 15(d) (whichever is applicable) of the Exchange Act, including the rules of the Commission promulgated thereunder. Immediately upon becoming subject to the reporting requirements of ~~Rule 430B and~~ either Section 13 or 15(d) of the Exchange Act, the Company will ~~notify the Representatives immediately, and confirm the notice in writing,~~ forthwith upon request furnish any Stockholder (i) ~~when any post-effective amendment to~~ a written statement by the ~~Registration Statement or new registration statement relating to the Bonds shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed~~Company that it has complied with such reporting requirements, (ii) a copy of the ~~receipt~~ most recent annual or quarterly report of ~~any comments from~~ the Company filed by the Company with the Commission, and (iii) ~~of any request~~ such other reports and documents filed by the Company with the Commission ~~for any amendment to~~ as such Stockholder may reasonably request. The Company acknowledges and agrees that the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) purpose of the ~~issuance by~~ requirements contained in this Section II is to enable any such Stockholder to comply with the current public information requirements contained in Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of Rule 144 and Rule 144A under the Securities Act ~~concerning the Registration Statement and (v) if the~~ should such Stockholder ever wish to dispose of any Company ~~becomes the subject of a proceeding~~ Stock without registration under ~~Section 8A of~~ the Securities Act in ~~connection with~~ reliance upon Rule 144 or Rule 144A (or any other similar exemptive provision) and such disposition is permitted by the ~~offering~~ terms of this Agreement. In addition, the ~~Bonds. The~~ Company will ~~effect the filings required under Rule 424(b)~~take such other measures and file such other information, ~~in the manner~~ documents and ~~within the time period~~ reports, as shall hereafter be required by ~~Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required~~ Commission ~~filing fees relating~~ as a condition to the ~~Bonds within the time required by~~ availability of Rule ~~456(b)(1)(i) of~~ 144 and Rule 144A under the Securities Act ~~Regulations without regard to the proviso therein and otherwise~~ (or any similar exemptive provision hereafter in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)effect). (b) The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing.

Appears in 1 contract

Samples: Stockholders' Agreement (Specrite Brake Co)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with each of the ~~several Underwriters~~Underwriters as follows: (a) The ~~Company~~Company shall use its best efforts to cause the Registration Statement and any amendments thereto, ~~subject~~ if not effective at the time of execution of this Agreement, to ~~Section 6(b)~~become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Company will ~~comply~~ prepare and file in accordance with Rule 430A and Rule 424(b) copies of the ~~requirements of~~ Prospectus or, if required by Rule ~~430B~~ 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will ~~notify~~ provide evidence satisfactory to the Representatives of such timely filing. (b) The Company shall notify you immediately, and confirm ~~the~~ such notice in writing, : (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds shall~~ Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus ~~shall have~~ has been filed, ; (ii) of the receipt of any comments or requests from the ~~Commission~~Commission relating in any way to the Registration Statement, ~~(iii)~~ any Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the aforementioned of any request by of the Commission ~~for any amendment~~ to amend or supplement the Registration ~~Statement~~ Statement, any Preliminary Prospectus or the ~~filing of a new registration statement or any amendment or supplement to the~~ Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional information, ; and (iviii) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration ~~Statement or such new registration statement or of any order~~ Statement, preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus or the Prospectus, or ~~of the suspension of~~ suspending the qualification of any of the ~~Bonds~~ Shares for offering or sale in any ~~jurisdiction,~~ jurisdiction or the institution or threat of ~~the initiation or threatening~~ institution of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company ~~will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable effort~~ shall use its best efforts to prevent the issuance of any such stop order ~~and,~~ or of any other such order and if any ~~stop~~ such order is issued, to ~~obtain~~ cause such order to be withdrawn or lifted as soon as possible. (c) The Company shall furnish to you, from time to time without charge, as soon as available, as many copies as you may reasonably request of (i) the ~~lifting thereof at~~ registration statement as originally filed and of all amendments and supplements thereto, in executed form, including exhibits, whether filed before or after the ~~earliest possible moment~~Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto. (d) During the time when a prospectus is required to be delivered under the 1933 Act, the Company shall comply 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 Shares as contemplated herein and in the Prospectus. The Company shall ~~pay the required Commission filing fees relating~~ not file any amendment to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment registration statement as originally filed or to the Registration Statement ~~or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to~~ and shall not file ~~or prepare~~ any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus and will not file any document under the 1934 Act before the termination of the offering of the Shares by the Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or ~~new registration statement relating~~ the Prospectus of which you shall not previously have been advised in writing and provided a copy within a reasonable time prior to the ~~Bonds~~ proposed filings thereof or ~~any amendment~~to which you or your counsel shall reasonably object. If it is necessary, ~~supplement~~ in your reasonable opinion or ~~revision to either any preliminary prospectus (including any prospectus included~~ in the ~~Original~~ reasonable opinion of counsel for the Underwriters, to amend or supplement the Registration Statement or ~~amendment thereto at~~ the ~~time it became effective)~~ Prospectus in connection with the distribution of the Shares, the Company shall forthwith amend or to supplement the Registration Statement or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, by preparing and ~~will not file~~ filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or ~~use any such document to which~~ amendments of, or a supplement or supplements to, the ~~Representatives shall reasonably object in writing. The Company will give~~ Registration Statement or the ~~Representatives notice of its intention to make any such filing pursuant to~~ Prospectus, as the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet case may be (~~the “Final Term Sheet”) reflecting the final terms of the Bonds,~~ in form and substance reasonably satisfactory to you and to counsel for the ~~Representatives~~Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of fact or to include any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and ~~shall file~~ furnishing to you, such ~~Final Term Sheet~~ number of copies as you may reasonably request of an ~~“Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday~~amendment or amendments of, ~~a Sunday~~ or a ~~legal holiday~~ supplement or ~~a day on~~ supplements to, the Prospectus (in form and substance satisfactory to you and to counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which ~~banking institutions~~ they were made, not misleading. (e) The Company shall cooperate with you and counsel for the Underwriters in order to qualify the Shares for offering and sale under the securities or ~~trust companies are authorized or obligated by law to close~~ blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in ~~The City~~ effect so long as may be advisable for distribution of ~~New York)~~the Shares; ~~provided~~ provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Company shall file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above. The Company will notify you immediately of, and confirm in writing, the suspension of qualification of the Shares or threat thereof in any jurisdiction. (f) The Company shall make generally available to its security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated earnings statement of the Company conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158. (g) The Company shall use the proceeds from the sale of the Shares to be sold by the Company hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds." (h) For 5 years from the Effective Date, the Company shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Company to the holders of the Common Stock as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market and such other documents, reports and information concerning the business and financial condition of the Company as the Representatives may reasonably request, other than such documents, reports and information for which the Company has the legal obligation not to reveal to the Representatives. (i) For a period of 90 days from the date hereof, the Company shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any shares of Common Stock, or any securities convertible into, exercisable or exchangeable for, or that are the economic or voting equivalent of, any such shares of Common Stock, or announce the offering of, or register with the Commission, any shares of Common Stock or any such other securities, without your prior written consent; and the Company will use its best efforts to cause the persons listed on Schedules II and III hereto not to, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of (except for bona fide gifts) any shares of Common Stock, or any securities convertible into, exercisable or exchangeable for, or that are the economic or voting equivalent of, any shares of Common Stock for a period of 90 days from the date hereof without your prior written consent; provided, however, that with respect to the persons listed on Schedule III hereto, such period shall be 90 days from the date hereof. (j) The Company shall use its best efforts to obtain approval for additional shares of Common Stock (such that all of the Shares shall be quoted on or approved for quotation on the Nasdaq National Market), and maintain the quotation of the Common Stock on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least 5 years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives. (k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Shares under the 1933 Act or relating to any documents incorporated by reference into the Registration Statement or the Prospectus. (l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Shares shall expire or (ii) the day following the Option Closing Date with respect to any Option Shares that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Company nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Company or the Subsidiaries incurring any liability or obligation, direct or contingent, or enter into any transaction, except in the ordinary course of business, and there will not be any change in the financial position, capital stock, or any increase in long-term debt, obligations under capital leases or short-term borrowings of the Company and the Subsidiaries on a consolidated basis other than in the ordinary course of business. (m) The Company shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Company's securities which are convertible into Common Stock. (n) The Company shall not take, directly or indirectly, any action designed to result in or which has constituted or which might cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares and the Company is not aware of any such ~~Final Term Sheet a reasonable amount~~ action taken or to be taken by any affiliate of ~~time prior~~ the Company. (o) Prior to ~~such proposed filing and~~ the Closing Date (and, if applicable, the Option Closing Date), the Company will not ~~use~~ issue any press release or ~~file~~ other communication directly or indirectly or hold any ~~such document~~ press conference with respect to the Company, the Subsidiaries or the offering of the Shares without your prior written consent, which will not be unreasonably withheld. (p) The Company and the ~~Representatives~~ Subsidiaries shall ~~reasonably object~~ conduct their businesses in ~~writing~~material compliance with all applicable federal and state laws, rules, regulations, decisions, directives and orders (including, without limitation, the applicable provisions of the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the BHC Act, the National Bank Act, the Federal Deposit Insurance Corporation Improvement Act, the Oklahoma General Corporation Act, the Oklahoma banking laws and all decisions, directives and orders of the FDIC, the OCC, the Oklahoma Banking Commissioner, the Oklahoma Banking Board, and the Board of Governors of the Federal Reserve System, as applicable). (q) The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (i) transactions are executed in accordance with management's authorization, (ii) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company and its Subsidiaries, (iii) access to the assets of the Company and its Subsidiaries is permitted only in accordance with management's authorization, and (iv) the recorded accounts of the assets of the Company and its Subsidiaries are compared with existing assets at reasonable intervals.

Appears in 1 contract

Samples: Underwriting Agreement (Southwest Bancorp Inc)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with ~~the several Underwriters~~each Manager as follows: (a) The ~~Company~~Company will use its best efforts to cause the Registration Statement to become effective and, if the Company elects to rely upon Rule 430A and subject to Section ~~6(b~~3(b), will comply with the requirements of Rule ~~430B~~ 430A and will notify ~~the Representatives immediately, and confirm the notice in writing~~you promptly, (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ Statement, shall have become effective, or any supplement to the ~~Prospectus~~ Prospectuses or any amended ~~Prospectus~~ Prospectuses shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration ~~Statement or the filing of a new registration statement or any amendment~~ Statement, to amend or supplement ~~to the~~ any Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional ~~information,~~ information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement ~~or such new registration statement~~ or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Offered Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8))purposes. The Company will 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 ~~stop~~ such order is issued, to obtain the lifting thereof at the earliest possible moment. ~~The~~ If the Company ~~shall pay~~ elects to rely on Rule 434 under the ~~required Commission filing fees relating~~ 1933 Act Regulation, the Company will use an abbreviated term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations. If the Company elects not to rely on Rule 434, the ~~Bonds within~~ Company will provide the ~~time required by Rule 456(b)(1)(i)~~ Managers with copies of the ~~Securities Act Regulations without regard to~~ International Prospectus, in such number as the ~~proviso therein~~ Managers may reasonably request, and ~~otherwise in accordance~~ file or transmit for filing with ~~Rules 456(b) and 457(r) of~~ the ~~Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table~~ Commission such International Prospectus in accordance with Rule ~~456(b)(1)(ii~~424(b) ~~either~~ of the 1933 Act Regulations by the close of business in ~~a post-effective amendment to the Registration Statement or~~ New York on the ~~cover page~~ business day immediately succeeding the date of ~~a prospectus filed pursuant~~ the International Price Determination Agreement. If the Company elects to rely on Rule 434 of the 1933 Act Regulations, the Company will provide the Managers with copies of the abbreviated term sheet, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission an International 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 or the business day immediately succeeding the date of the International Price Determination Agreement. (b) The Company will ~~give the Representatives notice of its intention to~~ not at any time file or ~~prepare~~ make any amendment to the Registration ~~Statement~~ Statement, or ~~new registration statement relating~~ any amendment or supplement thereto, or any document incorporated by reference therein (i) if the Company has not elected to rely upon Rule 430A, to the ~~Bonds~~ Prospectuses or ~~any amendment~~(ii) if the Company has elected to rely upon Rule 430A, ~~supplement or revision~~ to either ~~any preliminary prospectus (including any~~ the prospectus included in the ~~Original~~ Registration Statement ~~or amendment thereto~~ at the time it ~~became effective)~~ becomes effective or to the ~~Prospectus~~Prospectuses, of which you shall not have previously been advised and furnished a copy or to which you or Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the Managers shall reasonably object. (c) The Company has furnished or will furnish to you and your counsel, without charge, signed copies of the Registration Statement (as originally filed) and of all amendments thereto (including exhibits filed therewith and documents incorporated by reference therein), whether ~~pursuant~~ 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, and has furnished or will furnish to you, for each other Manager, one conformed copy of the ~~Securities Act~~Registration Statement as originally filed and each amendment thereto. (d) The Company will deliver to each Manager, without charge, from time to time until the ~~Exchange Act or otherwise~~effective date of the Registration Statement (or, if the Company has elected to rely upon Rule 430A, until the time the International Price Determination Agreement is executed and delivered), as many copies of each preliminary prospectus as such Manager may reasonably request, and the Company ~~will furnish~~ hereby consents to the ~~Representatives with~~ use of such copies ~~of any such documents a reasonable amount of time prior to such proposed filing or use, as~~ for purposes permitted by the ~~case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing~~1933 Act. The Company will ~~give~~ deliver to each Manager, without charge, as soon as the ~~Representatives notice~~ Registration Statement shall have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the International Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when the Prospectuses are required to be delivered under the 1933 Act, such number of copies of the Prospectuses (as supplemented or amended) as such Manager may reasonably request. (e) The Company will comply to the best of its ~~intention~~ 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 Shares as contemplated in this Agreement, the U.S. Purchase Agreement and the Prospectuses. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Shares any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Managers, to amend the Registration Statement or amend or supplement any Prospectus in order that the Prospectuses 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 such counsel, at any such ~~filing pursuant~~ time to amend the ~~Exchange~~ Registration Statement or amend or supplement any Prospectus in order to comply with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or ~~Exchange~~ the 1934 Act ~~Regulations~~ Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectuses comply with such requirements. (f) The Company will endeavor, in cooperation with the Managers, to qualify the Offered Shares for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than one year from the ~~Applicable Time~~ effective date of the Registration Statement; provided, however, that neither the Company nor any Subsidiary shall be obligated to ~~the Closing Date and will furnish the Representatives with copies~~ file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any ~~such documents a reasonable amount~~ jurisdiction in which it is not so qualified or to subject itself to taxation in respect of ~~time prior to such proposed filing and will~~ doing business in any jurisdiction in which it is not ~~file or use any such document to which the Representatives shall reasonably object in writing~~otherwise so subject. The Company will ~~prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall~~ file such ~~Final Term Sheet~~ statements and reports as ~~an “Issuer Free Writing Prospectus” prior~~ may be required by the laws of each jurisdiction in which the Offered Shares have been qualified as above provided. (g) The Company will make generally available to its security holders as soon as practicable, but not later than 60 days after the close of ~~business two Business Days~~ the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Rule 158 of the 1933 Act Regulations), covering a period of 12 months beginning after the effective date ~~hereof~~ of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date. (~~“Business Day” shall mean~~ h) For a period of 90 days from the date hereof, the Company will not, without the prior written consent of Xxxxxxx Xxxxx on behalf of the Underwriters, directly or indirectly, sell, offer to sell, grant any ~~day~~ option for the sale of, or otherwise dispose of, any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock, other than to (i) the U.S. Underwriters pursuant to the U.S. Purchase Agreement and the Managers pursuant to this Agreement and (ii) eligible participants in the Company's employee stock plans pursuant to the terms thereof as in effect on the date hereof. (i) The Company will use its best efforts to effect the listing of the Common Stock on the New York Stock Exchange on the date of the International Price Determination Agreement. (j) The Company, during the period when the Prospectuses are required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act subsequent to the time the Registration Statement becomes effective. (k) For a ~~Saturday~~period of five years after the Closing Time, ~~a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that~~ the Company ~~shall~~ will furnish ~~the Representatives with~~ to you and each Manager that so requests copies of ~~any~~ all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K and 10-Q and, to the extent requested, Form 8-K or such ~~Final Term Sheet a reasonable amount~~ other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to its stockholders generally. (l) If the Company has elected to rely upon Rule 430A, it will take such steps as it deems necessary to ascertain promptly whether the forms of ~~time prior to~~ prospectuses transmitted for filing under Rule 424(b) were received for filing by the Commission and, in the event that they were not, it will promptly file such ~~proposed filing~~ prospectuses. (m) The Company has complied, and will ~~not~~ comply, with all of the provisions of Florida H.B. 1771, as codified in sec. 517.075 Florida Statutes, 1987, as amended, and all regulations promulgated thereunder relating to issuers or their affiliates doing business with the government of Cuba or with any person or affiliate located in Cuba. (n) The Company will use ~~or file any such document to which~~ the ~~Representatives shall reasonably object~~ net proceeds received by it from the sale of the Offered Shares in ~~writing~~the manner specified in the Prospectuses under the caption "Use of Proceeds."

Appears in 1 contract

Samples: International Purchase Agreement (Warnaco Group Inc /De/)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with ~~the several Underwriters~~you as follows: (a) The ~~Company~~Company will promptly notify CS, ~~subject to Section 6(b), will comply with~~ representing the ~~requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing~~Underwriters, (i) ~~when~~ of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or ~~new registration statement relating to the Bonds shall become effective,~~ amendment or ~~any~~ supplement to the Prospectus or any ~~amended~~ document to be filed pursuant to the 1934 Act during any period when the Prospectus ~~shall have been filed~~is required to be delivered under the 1933 Act, (iiiii) of the receipt of any comments or inquiries from the ~~Commission~~Commission relating to the Registration Statement or Prospectus, (~~iii~~iv) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the Prospectus or ~~any document incorporated by reference therein or otherwise deemed to be a part thereof or~~ for additional information, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ the initiation of any proceeding for that purpose or pursuant to Xxxxxxx 0X xx xxx 0000 Xxx, (xx) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vii) of the issuance by any state securities commission or other regulatory authority of any order ~~preventing or~~ suspending the ~~use of any preliminary prospectus,~~ qualification or of the ~~suspension of the~~ exemption from qualification of the ~~Bonds for offering~~ Securities under state securities or ~~sale in any jurisdiction,~~ blue sky laws or of the initiation ~~or threatening~~ of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondsthat purpose. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable~~ use its best effort to prevent the issuance by the Commission of any stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company ~~shall~~ will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the second business day immediately succeeding the date hereof. The Company will pay the required Commission filing fees relating to the ~~Bonds~~ Securities within the time required by Rule ~~456(b)(1)(i~~456(b)(1) ~~of the Securities Act Regulations~~ without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The~~ At any time when a Prospectus is (or but for the exemption in Rule 172 would be) required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Securities, the Company will give CS, representing the ~~Representatives~~ Underwriters, notice of its intention to file or prepare any amendment to the Registration Statement or ~~new registration statement relating to the Bonds or~~ any amendment, supplement or revision to either ~~any preliminary prospectus (including any~~ the prospectus included in the ~~Original~~ Registration Statement ~~or amendment thereto~~ at the time it became effective~~) or~~ , to the Prospectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the ~~Securities Act~~1933 Act Regulations), ~~the Exchange Act or otherwise, and the Company~~ will furnish the ~~Representatives~~ Underwriters with copies of any such ~~documents~~ amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such ~~document~~ prospectus to which the ~~Representatives~~ Underwriters or counsel for the Underwriters shall reasonably ~~object~~ object, unless in ~~writing~~the judgment of the Company and its counsel, and after notification to you, such amendment or supplement is required by law. (c) The Company has furnished or will deliver to you, without charge, a signed copy of the Registration Statement as originally filed and of each subsequent amendment thereto relating to the offering of the Securities (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) and as many conformed copies of the Registration Statement as originally filed and of each subsequent amendment thereto relating to the offering of the Securities (including documents incorporated or deemed to be incorporated by reference therein but without exhibits filed therewith), as you may reasonably request. (d) The Company will furnish to you, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as you may reasonably request. (e) If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the General Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the General Disclosure Package to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (n) below, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representative may designate, such amendments or supplements to the General Disclosure Package as may be necessary so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the General Disclosure Package will comply with law. (f) The Company will comply 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 to be delivered under the 1933 Act in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel or counsel for the Company, to 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, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if, in the opinion of your counsel or counsel for the Company, it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company, at its own expense, will promptly prepare such amendment or supplement as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to a purchaser, be misleading or so that such Prospectus as so amended or supplemented will comply with applicable law, as the case may be, and furnish you such number of copies as you may reasonably request. The Company will ~~give~~ not file any amendment or supplement without first providing the ~~Representatives notice of its intention to make any~~ Underwriters with such ~~filing pursuant~~ amendment or supplement and having obtained the Underwriters’ consent to the ~~Exchange Act~~ filing, which consent shall not be unreasonably withheld unless in the judgment of the Company and its counsel, and after notification to you, such amendment or ~~Exchange Act Regulations~~ supplement is required by law. Neither the Underwriters consent to, nor the delivery of such amendment or supplement, shall constitute a waiver of any of the conditions in Section 6 hereof. (g) The Company will endeavor, in cooperation with you, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than a year from the ~~Applicable Time~~ date of the Prospectus; provided, however, that the Company shall not be obligated to ~~the Closing Date and will furnish the Representatives with copies~~ file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any ~~such documents a reasonable amount~~ jurisdiction in which it is not so qualified or to subject itself to taxation in respect of ~~time prior to such proposed filing and will~~ doing business in any jurisdiction in which it is not ~~file or use any such document to which the Representatives shall reasonably object in writing~~otherwise so subject. The Company will ~~prepare a final term sheet (~~file such statements and reports as may be required by the ~~“Final Term Sheet”) reflecting~~ laws of each jurisdiction in which the ~~final terms~~ Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the ~~Bonds~~legality of the Securities for investment under the laws of such jurisdictions as you may request. (h) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the effective date of the Registration Statement and satisfying the provisions of Section 11(a) of the Act and Rule 158. (i) The Company will use its best efforts in ~~form~~ cooperation with you to permit the Securities offered and ~~substance reasonably satisfactory~~ sold in transactions by you to be eligible for clearance and settlement through The Depository Trust Company. (j) The Company will apply the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the heading “Use of Proceeds.” (k) Prior to the ~~Representatives~~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 Company, without your prior consent, which shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and ~~shall~~ after notification to you, such press release or communication is required by law. (l) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file ~~such Final Term Sheet~~ all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (m) Except as contemplated by this Agreement with respect to the sale of the Securities, for a period of 60 days from the date of the Prospectus, the Company will not, without the prior written consent of CS, directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company and having a tenor of more than one year. (n) The Company represents and agrees that it has not made and will not make any offer relating to the Securities that would constitute an “Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” ~~prior to~~ as defined in Rule 405 of the ~~close of business two Business Days after the date hereof (“Business Day” shall mean any day~~ 1933 Act, other than as listed on Schedule A, without the prior consent of CS. Any such free writing prospectus consented to by CS is hereinafter referred to as a ~~Saturday~~“Permitted Free Writing Prospectus.” The Company represents that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and has complied and will ~~not use or file~~ comply with the applicable requirements of Rule 164 and Rule 433 of the 1933 Act applicable to any ~~such document to which the Representatives shall reasonably object in writing~~Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.

Appears in 1 contract

Samples: Underwriting Agreement (Be Aerospace Inc)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with the ~~several Underwriters~~Underwriters as follows: (a) The ~~Company~~Company shall cause the Registration Statement and any amendments thereto, ~~subject~~ if not effective at the time of execution of this Agreement, to ~~Section 6(b)~~become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Company will ~~comply~~ prepare and file in accordance with Rule 430A and Rule 424(b) copies of the ~~requirements of~~ Prospectus or, if required by Rule ~~430B~~ 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representatives of such timely filing. (b) The Company shall notify the Representatives immediately, and confirm ~~the~~ such notice in writing, : (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds shall~~ Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus ~~shall have~~ has been filed, ; (ii) of the receipt of any comments or requests from the ~~Commission, (iii) of~~ Commission relating in any ~~request by the Commission for any amendment~~ way to the Registration ~~Statement or the filing of a new registration statement or~~ Statement, any ~~amendment or supplement to~~ Preliminary Prospectus, the Prospectus or any ~~document incorporated by reference therein~~ amendments or ~~otherwise deemed~~ supplements to ~~be a part thereof~~ any of the aforementioned, and of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, ; and (iviii) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration ~~Statement or such new registration statement or of any order~~ Statement, preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus or the Prospectus, or ~~of the suspension of~~ suspending the qualification of any of the ~~Bonds~~ Designated Shares for offering or sale in any ~~jurisdiction,~~ jurisdiction or the institution or threat of ~~the initiation or threatening~~ institution of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company ~~will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable effort~~ shall use its best efforts to prevent the issuance of any such stop order ~~and,~~ or of any other such order and if any ~~stop~~ such order is issued, to ~~obtain~~ cause such order to be withdrawn or lifted as soon as possible. (c) The Company shall furnish to the ~~lifting thereof at~~ Underwriters, from time to time without charge, as soon as available, as many copies as the ~~earliest possible moment~~Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto. (d) During the time when a prospectus is required to be delivered under the 1933 Act, the Company shall comply 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 Designated Shares as contemplated herein and in the Prospectus. The Company shall ~~pay the required Commission filing fees relating~~ not file any amendment to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or on make any amendment or supplement to any Preliminary Prospectus or to the ~~cover page~~ Prospectus of ~~a prospectus filed pursuant to Rule 424(b)). (b) The Company will give~~ which the Representatives ~~notice~~ shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which the Representatives or counsel for the Underwriters shall reasonably object. If it is necessary, in the Representatives' reasonable opinion or in the reasonable opinion of ~~its intention~~ counsel to ~~file~~ the Underwriters, to amend or ~~prepare any amendment to~~ supplement the Registration Statement or ~~new registration statement relating to~~ the ~~Bonds~~ Prospectus in connection with the distribution of the Designated Shares, the Company shall forthwith amend or ~~any amendment,~~ supplement ~~or revision to either any preliminary prospectus (including any prospectus included in~~ the ~~Original~~ Registration Statement or ~~amendment thereto at the time it became effective) or to~~ the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, by preparing and ~~will~~ filing with the Commission, and furnishing to the Representatives such number of copies as the Representatives may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance satisfactory to the Representatives and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the second sentence of this subsection (d), forthwith at its cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to the Representatives, such number of copies as the Representatives may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to the Representatives and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (e) The Company shall cooperate with the Representatives and counsel for the Underwriters in order to qualify the Designated Shares for offering and sale under the securities or blue sky laws of such jurisdictions as the Representatives may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Shares; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or file ~~or use~~ a general consent to service of process in any jurisdiction in connection with the foregoing. The Company shall file such ~~document to~~ statements and reports as may be required by the laws of each jurisdiction in which the ~~Representatives shall reasonably object in writing~~Designated Shares have been qualified as above. The Company will ~~give~~ notify the Representatives ~~notice~~ immediately of, and confirm in writing, the suspension of ~~its intention to make~~ qualification of the Designated Shares or threat thereof in any jurisdiction. (f) The Company will deliver against payment of the purchase price the certificates for the Designated Shares and registered in such ~~filing pursuant to~~ names and denominations as the ~~Exchange Act or Exchange Act Regulations from the Applicable Time~~ Representatives shall have requested at least two full business days prior to the Closing Date and, if applicable, the Option Closing Date and ~~will furnish~~ shall be made available, at the ~~Representatives with copies~~ request of ~~any such documents a reasonable amount of time~~ the Representatives, for inspection at least 24 hours prior to such ~~proposed filing~~ Closing Date and ~~will~~ Option Closing Date. (g) The Company shall make generally available to its security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to the Representatives as soon as practicable, but in any event not ~~file~~ later than 16 months after the Effective Date, a consolidated earnings statement of the Company in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158. (h) The Company shall use the net proceeds from the sale of the Designated Shares in the manner specified in the Prospectus under the caption "Use of Proceeds." (i) For five years from the Effective Date, the Company shall furnish to the Representatives copies of all reports and communications (financial or ~~use~~ otherwise) furnished by the Company to the holders of the Designated Shares as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market or other self-regulatory organization and such ~~document to~~ other documents, reports and information concerning the business and financial conditions of the Company as the Representatives may reasonably request, other than such documents, reports and information for which the ~~Representatives~~ Company has the legal obligation not to reveal to the Representatives. (j) For a period of 180 days from the Effective Date, the Company shall ~~reasonably object~~ not, without the Representatives' prior written consent, directly or indirectly offer, sell, contract to sell or otherwise dispose of any shares of the Company's equity securities, any securities convertible or exchangeable for such equity securities or any other rights to acquire such equity securities, other than (A) Designated Shares issued and sold to the Underwriters pursuant to this Agreement, (B) Common Stock issued upon exercises of employee stock options outstanding on the date hereof, (C) grants of options or other rights to purchase Common Stock and issuances of shares of Common Stock under employee benefit plans and other compensatory programs in ~~writing~~existence on the date hereof and registrations thereof on Form S-8, and (D) Common Stock issued as consideration in any bona-fide merger or other business combination transaction. The Company will ~~prepare a final term sheet~~ use its commercially reasonable efforts to cause the persons listed under the heading "Management" in the Prospectus (or, if the ~~“Final Term Sheet”~~Prospectus is not in existence, in the Preliminary Prospectus) ~~reflecting~~ to deliver to the ~~final terms~~ Underwriters on or before the date of ~~the Bonds~~this Agreement, an agreement satisfactory in form and substance ~~reasonably satisfactory~~ to the Underwriters and counsel for the Underwriters whereby each such person agrees, for a period of 180 days from the Effective Date, not to, directly or indirectly, offer, sell, contract to sell or otherwise dispose of any shares of the Company's equity securities or any other rights to acquire such equity securities without the prior written consent of the Underwriters. (k) The Company shall use its commercially reasonable efforts to cause the Designated Shares to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted. (l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Shares shall expire or (ii) the day following the Option Closing Date with respect to any Option Shares that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Company nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Company or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Company and the Subsidiaries on a consolidated basis. (m) Except as described in the Prospectus, the Company shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, ~~and~~ purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Company's Common Stock, except for any purchases of shares of Common Stock pursuant to a publicly announced stock buy-back program. (n) The Company shall ~~file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior~~ not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the ~~close~~ price of ~~business two Business Days after the date hereof (“Business Day” shall mean~~ any ~~day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City~~ security of ~~New York); provided that~~ the Company ~~shall furnish~~ in connection with the ~~Representatives with copies~~ sale or resale of the Designated Shares in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Company is not aware of any such ~~Final Term Sheet a reasonable amount~~ action taken or to be taken by any affiliate of ~~time~~ the Company. (o) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, the Subsidiaries or the offering of the Designated Shares without the Representatives' prior ~~to such proposed~~ consent. (p) The Company shall comply with all registration, filing and ~~will not use or file any such document~~ reporting requirements of the 1934 Act and the 1934 Act Regulations for so long as the Prospectus is required to ~~which the Representatives shall reasonably object in writing~~be delivered.

Appears in 1 contract

Samples: Underwriting Agreement (Texas United Bancshares Inc)

Certain Covenants of the Company. The Company covenants and agrees with the several ~~Underwriters~~Underwriters as follows: (a) ~~The Company, subject~~ Subject to Section 6(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Securities shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement and/or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the ~~Bonds~~Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the ~~Bonds~~ Securities within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The Company will~~ To give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Securities or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of ~~its~~ their intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the ~~Bonds~~Securities, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing ~~Prospectus”~~ Prospectus prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing; (c) To furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as each Underwriter may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives reasonably object in writing. (e) To use its best efforts to qualify the Securities and to assist in the qualification of the Securities by you or on your behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as you may designate in the United States and Canada, to continue such qualification in effect so long as required for the distribution of the Securities and to reimburse you for any expenses (including filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the Securities for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Securities, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) To promptly deliver to you a true and correct copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as you may reasonably request; (g) If at any time prior to the completion of the sale of the Securities by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act, the Company promptly (i) will notify the Representatives of any such event; (ii) subject to the requirements of paragraph (b) of this Section 6, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement (i) that is necessary in connection with such a delivery of a prospectus more than nine months after the date of this Agreement or (ii) that relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Securities and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Securities has been completed when they are advised by you that no Underwriter or such dealer retains any Securities. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Securities) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at their own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; (h) The Company will, as soon as practicable, make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Act; (i) The Company will pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 6(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Securities to the Underwriters at the place designated in Section 5 hereof, any fees and expenses relating to the eligibility and issuance of the Securities in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Securities, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Securities; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 6(g) above) any amendment or supplement thereto, to the Underwriters; (iii) the Company’s costs and expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations 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 Issuers’ portion of the costs of any aircraft chartered in connection with the road show; and (iv) all fees and expenses in connection with listing the Securities on the New York Stock Exchange; (j) The Company hereby agrees that, without the prior written consent of Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated and Credit Suisse Securities (USA) LLC, on behalf of the Underwriters, it will not, during the period ending 90 days after the date of the final prospectus supplement included in the Prospectus (the “Lock-Up Period”), directly or indirectly, (i) register, offer, issue, 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 any shares of Common Stock (the “Lock-Up Securities”) or any securities convertible into or exercisable or exchangeable for Lock-Up Securities, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Lock-Up Securities, (iii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (iv) file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action, whether any such transaction described in clause (i), (ii) or (iii) above is to be settled by delivery of Lock-Up Securities or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the “Securities” or “Purchase Contracts” (as such terms are defined in the Underwriting Agreement referred to immediately below) to be issued in the transactions contemplated by that certain Underwriting Agreement, dated the date hereof, by and among the Company, PPL Capital Funding, Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Credit Suisse Securities (USA), LLC, as the representatives of the several underwriters named therein, relating to the offer and sale of 20,000,000 equity units of the Company, (B) the issuance by the Company of shares of Common Stock pursuant to, or the grant of options under the Company’s existing stock option, employee benefit or dividend reinvestment plans (as described in the General Disclosure Package and the Prospectus), or the filing of a registration statement with the Commission relating to the offering of any shares of common stock issued or reserved for issuance under such plans, or (C) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the repurchase of shares of Common Stock, provided that such plan does not provide for the repurchase of Common Stock during the Lock-Up Period. If, however, (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the materials news or material event, as applicable, unless Merrill Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated and Credit Suisse Securities (USA) LLC waive, in writing, such extension; and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 1 contract

Samples: Underwriting Agreement (PPL Corp)

Certain Covenants of the Company. The Company covenants and agrees with the several Underwriters: (a) ~~The Company, subject~~ Subject to Section 6(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Bonds shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The Company will~~ To give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act, Securities Act or ~~Exchange~~ Securities Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) substantially in the form attached as Annex I hereto reflecting the final terms of the Bonds~~, in form and substance reasonably satisfactory to the Representatives~~, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in ~~The City of New York)~~accordance with Rule 433; provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing. (c) To furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as each Underwriter may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives reasonably object in writing. (e) To use its best efforts to qualify the Bonds and to assist in the qualification of the Bonds by you or on your behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as you may designate, to continue such qualification in effect so long as required for the distribution of the Bonds and to reimburse you for any expenses (including filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the Bonds for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that the Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Bonds, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) Promptly to deliver to you one signed copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as you may reasonably request; (g) If at any time prior to the completion of the sale of the Bonds by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Prospectus to comply with applicable law, the Company promptly (i) will notify the Representatives of any such event; (ii) subject to the requirements of paragraph (b) of this Section 6, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement to the Prospectus (x) that is necessary in connection with such a delivery of a supplemental or amended Prospectus more than nine months after the date of this Agreement or (y) that relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Bonds and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Bonds has been completed when they are advised by you that no such Underwriter or dealer retains any Bonds. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Bonds) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (h) As soon as practicable, to make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Securities Act; (i) To pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 6(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Bonds to the Underwriters at the place designated in Section 5 hereof, any fees and expenses relating to the eligibility and issuance of the Bonds in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Bonds, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Bonds; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 6(g) above) any amendment or supplement thereto, to the Underwriters; (iii) any and all fees payable in connection with the rating of the Bonds; (iv) all costs and expenses relating to the creation, filing or perfection of the security interests under the Indenture; and (v) the reasonable fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Bonds; (j) During the period from the date of this Agreement through the Closing Date, the Company shall not, without the Representatives’ prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Bonds, any security convertible into or exchangeable into or exercisable for Bonds or any debt securities substantially similar to the Bonds (except for the Bonds issued pursuant to this Agreement); and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 1 contract

Samples: Underwriting Agreement (PPL Electric Utilities Corp)

Certain Covenants of the Company. The Company ~~covenants and agrees with the several Underwriters~~agrees: (a) The Company, subject to ~~Section 6(b)~~Sections 3(b) and 3(c) hereof, will comply with the requirements of Rule ~~430B~~ 430B, and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or any new registration statement relating to the ~~Bonds~~ Shares shall become ~~effective,~~ effective or any amendment or supplement to the ~~Prospectus or any amended~~ Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the ~~Prospectus or~~ Prospectus, including any ~~document incorporated by reference therein or otherwise deemed to be a part thereof~~ Incorporated Documents, or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ any post-effective amendment thereto or any notice of objection to the use of the Registration Statement or any post-effective amendment thereto or of the issuance of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus or any ~~preliminary prospectus~~amendment or supplement thereto, or of the suspension of the qualification of ~~the Bonds~~ any Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the ~~Securities~~ Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the ~~Securities~~ Act in connection with ~~the offering~~ any offer or sale of ~~the Bonds~~Shares. The Company will effect ~~the~~ all filings required under Rule 424(b), ) and Rule 430B in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any ~~stop~~ stop, prevention or suspension order and, if any ~~stop~~ such order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will comply with the Act and the Exchange Act so as to permit the completion of sales of Shares as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel to the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include any 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 (iii) amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus, as the case may be, including, without limitation, the filing of any Incorporated Documents, in order to comply with the requirements of the Act or the Exchange Act, the Company will promptly (A) give the Underwriters written notice of such event or condition, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Underwriters with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement and use its commercially reasonable efforts to have any amendment to the Registration Statement declared effective by the Commission as soon as possible; provided, however, that the Company shall not file or use any such amendment or supplement to which the Representatives shall object, which, in the case of any Incorporated Document, shall not be unreasonably withheld. (c) The Company will give the Representatives written notice of its intention to file or ~~prepare~~ use any amendment to the Registration Statement or ~~new registration statement relating~~ any amendment or supplement to the ~~Bonds~~ Disclosure Package or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the ~~Securities~~ Act, the Exchange Act or otherwise, ~~and the Company~~ will furnish the ~~Representatives~~ Underwriters with copies of any such ~~documents~~ document a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall ~~reasonably object~~ object, which, in ~~writing~~the case of any Incorporated Documents shall not be unreasonably withheld. (d) Upon request, the Company will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and Incorporated Documents) and signed copies of all consents and certificates of experts. The signed copies of the Registration Statement and each amendment thereto furnished to the Representatives and counsel for the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. (e) The Company will ~~give~~ furnish to each Underwriter, without charge, during the ~~Representatives notice~~ period in which a prospectus is (or, but for the exception afforded by Rule 172 of ~~its intention~~ the Act (“Rule 172”), would be) required by the Act to ~~make~~ be delivered in connection with any offer or sale of Shares, such ~~filing~~ number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished in accordance with this Section will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. (f) The Company, during the period in which a prospectus is (or, but for the exception afforded by Rule 172, would be) required by the Act to be delivered in connection with any offer or sale of Shares, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods prescribed by, and meeting the requirements of, the Exchange Act. Additionally, the Company shall report the use of the net proceeds from the sale of any Shares as may be required under the Act, including, if applicable, Rule 463 of the Act. (g) The Company will use its commercially reasonable efforts, in cooperation with the Underwriters, to qualify the Shares for offering and sale under the applicable securities laws of such states and non-U.S. jurisdictions as the Representatives may, from time to time, designate and to maintain such qualifications in effect so long as required to complete the sale of the Shares contemplated by this Agreement; 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. (h) The Company will timely file such reports pursuant to the Exchange Act ~~Regulations~~ as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Act. (i) The Company will use the net proceeds received by it from the ~~Applicable Time~~ sale of the Shares pursuant to this Agreement in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under “Use of Proceeds.” (j) The Company will use its commercially reasonable efforts to effect and maintain the listing of the Shares on, and satisfy the requirements of, the NYSE American. (k) The Company will not, without the prior written consent of the Representatives, within 90 days after the date of this Agreement, (i) issue, 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, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the Commission promulgated thereunder, with respect to, any Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a registration statement under the Act relating to the ~~Closing Date~~ offer and ~~will furnish the Representatives with copies~~ sale of any Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such ~~documents~~ transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii). The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a ~~reasonable amount~~ security outstanding on the date hereof and referred to in the Registration Statement, the Disclosure Package and the Prospectus, (C) any shares of ~~time~~ Common Stock issued or options to purchase Common Stock granted pursuant to employee benefit plans of the Company (as they exist on the date hereof) referred to in the Registration Statement, the Disclosure Package and the Prospectus, (D) any shares of Common Stock issued pursuant to non-employee director stock plans or dividend reinvestment plans (as they exist on the date hereof) referred to in the Registration Statement, the Disclosure Package and the Prospectus, provided that the Company shall cause each recipient of such shares pursuant to clause (A), (B), (C) or (D) to execute and deliver to you, on or prior to such ~~proposed filing~~ issuance, a “lock-up” agreement, substantially in the form of Exhibit B hereto, (E) the issuance of shares of preferred stock of the Company in a private placement concurrent with the issuance of the Firm Shares and the issuance of Common Stock upon conversion of such preferred stock, and (F) the issuance or sale of shares of Common Stock or the execution of any agreement to issue shares of Common Stock directly to the seller as part of the purchase price in connection with the acquisition of stock or assets of another business, by merger or otherwise, provided that the aggregate number of shares of Common Stock that the Company may issue or sell pursuant to this clause (F) shall not exceed 10% of the total number of shares of Common Stock issued and outstanding immediately following the completion of the transactions contemplated by this Agreement. (l) The Company agrees that, unless it obtains the prior written consent of the Representatives, it will not ~~file~~ make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or ~~use any such document~~ that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to ~~which~~ be filed by the ~~Representatives shall reasonably object in writing~~Company with the Commission or retained by the Company under Rule 433. The Company represents that it has treated or agrees that it will ~~prepare~~ treat each such free writing prospectus consented to by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus any event shall occur or condition shall exist as a ~~final term sheet~~ result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (m) The Company agrees that it will not, directly or indirectly, any action that is designed, or might reasonably be expected, to cause or result in, or any action that constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any Shares or a violation of Regulation M under the Exchange Act. (n) If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “~~Final Term Sheet~~Renewal Deadline”), this Agreement is still in effect or any Shares purchased by any Underwriter remain unsold, the Company will, prior to the Renewal Deadline, (i) ~~reflecting~~ promptly notify the ~~final terms of~~ Underwriters and (ii) promptly file, if it is eligible to do so, a new automatic shelf registration statement relating to the ~~Bonds~~Shares, in form and substance reasonably satisfactory to the ~~Representatives~~Underwriters. If, ~~and shall~~ at the time the Company intends to file such ~~Final Term Sheet as an “Issuer Free Writing Prospectus”~~ a new automatic shelf registration statement, it is not eligible to do so, the Company will, prior to the ~~close of business two Business Days~~ Renewal Deadline, (i) promptly notify the Underwriters, (ii) promptly file a new shelf registration statement on the proper form relating to the Shares, in form and substance reasonably satisfactory to the Underwriters, (iii) use its commercially reasonable efforts to cause such new shelf registration statement to be declared effective within 60 days after the ~~date hereof~~ Renewal Deadline and (iv) promptly notify the Underwriters of such effectiveness. The Company will take all other action necessary or appropriate to permit the offer and sale of the Shares to continue as contemplated in the expired Registration Statement. References herein to the “~~Business Day~~Registration Statement” shall ~~mean any day other than a Saturday~~include such new automatic shelf registration statement or such new shelf registration statement, ~~a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that~~ as the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writingcase may be.

Appears in 1 contract

Samples: Underwriting Agreement (Contango Oil & Gas Co)

Certain Covenants of the Company. ~~The~~ In further consideration of the agreements of the Underwriters herein contained, the Company covenants ~~and agrees with the several Underwriters:~~as follows. (a) ~~The Company~~To promptly transmit copies of the Preliminary Prospectus and the Prospectus, ~~subject~~ and any amendments or supplements thereto, to the Commission for filing pursuant to Rule 424 under the Act. (b) During the period when a prospectus relating to any of the Offered Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file promptly all documents required to be filed with the Commission pursuant to Section ~~6(b~~13(a), ~~will comply~~ 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required to be filed by the Company with the ~~requirements of~~ Commission pursuant to Rule ~~430B~~ 433(d) under the Act; and ~~will~~ to promptly notify the ~~Representatives immediately~~Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or Consumers Energy Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating. (c) To deliver to each of the Representatives, upon request, a conformed copy of the Registration Statement and ~~confirm~~ any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the ~~notice in writing, (i) when any post-effective amendment~~ Commission or its staff and all responses thereto with respect to the Registration Statement ~~or new registration statement relating~~ and any amendments thereto and to furnish to the ~~Bonds shall become effective~~Representatives, ~~or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii)~~ for each of the ~~receipt~~ Underwriters, conformed copies of the Registration Statement and any ~~comments from~~ amendments thereto without exhibits. (d) As soon as the ~~Commission~~Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (~~iii~~i) the effectiveness of ~~any request by the Commission for~~ any amendment to the Registration Statement or (and the ~~filing of a new registration statement or~~ Company agrees to use its best efforts to cause any ~~amendment or supplement~~ post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Time of Sale Prospectus or ~~any document incorporated by reference therein or otherwise deemed to be a part thereof~~ Prospectus or for additional ~~information,~~ information with respect thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Offered Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of ~~the issuance by the Commission of any~~ a stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or ~~threatening~~ threat of any proceedings for ~~any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement~~ that purpose (and ~~(v) if~~ the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if ~~any~~ such a suspension or stop order ~~is issued~~should be entered, to use every reasonable effort to obtain the lifting or removal thereof at the earliest possible ~~moment. The~~ time). (e) To deliver to the Underwriters, without charge, as soon as practicable, and from time to time during such period of time after the date of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall ~~pay~~ have made any supplements or amendments thereto), as the Representatives may reasonably request; and, in case any Underwriter is required ~~Commission filing fees relating~~ to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date of the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to the ~~Bonds within~~ Representatives, upon request, at the ~~time required by Rule 456(b)(1)(i~~expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the ~~Securities Act Regulations without regard~~ Act. (f) For such period of time as the Underwriters are required by law or customary practice to ~~the proviso therein and otherwise~~ deliver a prospectus in ~~accordance with Rules 456(b) and 457(r)~~ respect of the Offered Securities ~~Act Regulations~~ (~~including~~or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), if ~~applicable~~any event shall have occurred as a result of which it is necessary to amend or supplement the Time of Sale Prospectus or the Prospectus in order to make the statements therein, ~~by updating~~ in the ~~“Calculation~~ light of ~~Registration Fee” table~~ the circumstances when the Time of Sale Prospectus or the Prospectus (or, in ~~accordance with~~ lieu thereof, the notice referred to in Rule ~~456(b)(1)(ii~~173(a) ~~either in~~ under the Act), as the case may be, is delivered to a ~~post-effective amendment~~ purchaser, not misleading, or if it becomes necessary to amend or supplement the Registration Statement or on amend the ~~cover page~~ Time of ~~a prospectus filed pursuant~~ Sale Prospectus or the Prospectus to ~~Rule 424(b)).~~ comply with law, including in connection with the use or delivery of the Prospectus, to forthwith prepare and file with the Commission (bsubject to Section 4(m) ~~The Company will give the Representatives notice of its intention to file~~ hereof) an appropriate amendment or ~~prepare any amendment~~ supplement to the Registration ~~Statement~~ Statement, the Time of Sale Prospectus or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and ~~will not file~~ deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus. (g) During the period when a prospectus relating to any of the Offered Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or ~~use~~ any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Offered Securities during such ~~document~~ period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus. (h) If required by Rule 430B(h) under the Act, to ~~which~~ prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably ~~object in writing. The Company will give~~ objected to by the Representatives promptly after reasonable notice thereof, unless the Company is advised by counsel that such amendment or supplement is required by law. (i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (j) To use its ~~intention~~ best efforts to qualify the Offered Securities for offer and sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate and to pay (or cause to be paid), or reimburse (or cause to be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the date hereof); provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or as a securities dealer, file a general consent to service of process, file annual reports or comply with any other requirements deemed by the Company to be unduly burdensome. (k) To pay all expenses, fees and taxes (other than transfer taxes on sales by the respective Underwriters) in connection with the issuance and delivery of the Offered Securities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities and the Depositary Receipts, (iii) the costs and charges of any depositary, any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors, (vi) all expenses and application fees related to the listing of the Securities on the New York Stock Exchange (the “NYSE”), (vii) any fees associated with the filing of the Certificate of Designation with the Michigan Department of Licensing and Regulatory Affairs, Bureau of Commercial Services and (viii) any costs and expenses associated with the reforming of any contracts for any sale of the Offered Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in Section 4(j) hereof) of Pillsbury, counsel to the Underwriters, only in the events provided in Section 4(l) hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder. (l) If the Underwriters shall not take up and pay for the Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses not to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement, such amounts including all amounts incurred in connection with any roadshow, provided that such amounts are documented in writing to the Company, or (ii) due to termination in accordance with the provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters. (m) Prior to the termination of the offering of the Offered Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and, unless the Company is advised by counsel that such amendment or supplement is required by law, not to make any such ~~filing~~ amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives. (n) To furnish the Representatives, upon request, with copies of all documents filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Offered Securities. (o) So long as may be required by law for distribution of the Offered Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act. (p) Without the prior written consent of the Representatives, not to offer, 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, any preferred stock, depositary shares or any of the Company’s other securities, including any backup undertaking of such preferred stock, depositary shares or other securities, in each case that are substantially similar to the Preferred Stock or the Securities or any securities convertible into or exercisable or exchangeable for the Preferred Stock or the Securities or such substantially similar securities of the Company (except for the Securities) for a period from the date hereof and continuing for and including a period of 30 days. (q) To not take, directly or indirectly, any action designed to, or that has constituted or that might reasonably be expected to, cause or result in, under the Exchange Act or ~~Exchange Act Regulations from~~ otherwise, stabilization or manipulation of the ~~Applicable~~ price of any security of the Company to facilitate the sale or resale of the Offered Securities. (r) To cause the proceeds of the issuance and sale of the Offered Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus. (s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company to DTC relating to the ~~Closing Date and will furnish~~ approval of the ~~Representatives with copies~~ Securities by DTC for “book-entry” transfer. (t) To use its reasonable best efforts to effect the listing of ~~any such documents a reasonable amount~~ the Securities on the NYSE no later than the 30th day following the Time of ~~time~~ Purchase. (u) To, prior to the Time of Purchase, deposit the Preferred Shares with the Depositary in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that the Securities will be issued by the Depositary against receipt of such ~~proposed filing~~ Preferred Shares and ~~will not file or use~~ delivered to the Underwriters against payment therefor at the Time of Purchase. (v) To take all reasonable action necessary to enable S&P, Mxxxx’x and Fitch to provide their respective credit ratings of the Securities. (w) That any ~~such document~~ Underwriter may distribute to ~~which~~ investors a free writing prospectus (as defined in Rule 405 under the ~~Representatives shall reasonably object~~ Act) that contains the final terms of the Offered Securities in ~~writing. The Company will prepare a final term sheet~~ the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) ~~reflecting~~ under the ~~final terms~~ Act. (x) If the third anniversary of the ~~Bonds~~initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing. (y) If, at any time when Securities remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form ~~and substance~~ reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and ~~shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof~~ (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish iv) promptly notify the Representatives ~~with copies~~ of ~~any~~ 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 Representatives shall reasonably object in writing~~effectiveness.

Appears in 1 contract

Samples: Underwriting Agreement (CMS Energy Corp)

Certain Covenants of the Company. The Company covenants and agrees with ~~the several Underwriters~~each Underwriter as follows: (a) The ~~Company~~Company will use its best efforts to cause the Registration Statement to become effective (if not yet effective at the date and time that this Agreement is executed and delivered by the parties hereto). If the Company elects to rely upon Rule 430A of the 1933 Act Regulations or the filing of the Prospectus is otherwise required under Rule 424(b) of the 1933 Act Regulations, and subject to the provisions of Section ~~6(b)~~3(b) of this Agreement, the Company will comply with the requirements of Rule ~~430B~~ 430A and will file the Prospectus, properly completed, pursuant to the applicable provisions of Rule 424(b) within the time period prescribed, and will notify ~~the Representatives~~ you immediately, and confirm the notice in writing, (i) when the Registration statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ 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, (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration Statement or ~~the filing of a new registration statement or any amendment~~ amend or supplement to the Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement or~~ of any order preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus, or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make~~ 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 ~~stop~~ such order is issued, to obtain the ~~lifting~~ withdrawal thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will ~~give the Representatives notice of its intention to~~ not at any time file or ~~prepare~~ make any amendment to the Registration Statement or ~~new registration statement relating~~ any amendment or supplement to the ~~Bonds~~ Prospectus (i) if the Company has not elected to rely upon Rule 430A, or ~~any amendment~~(ii) if the Company has elected to rely upon Rule 430A, ~~supplement or revision~~ to either ~~any preliminary prospectus (including any~~ the prospectus included in the ~~Original~~ Registration Statement ~~or amendment thereto~~ at the time it ~~became effective)~~ becomes effective or to the ~~Prospectus~~Prospectus filed in accordance with Rule 424(b), in either case if you shall not have previously been advised and furnished a copy thereof a reasonable time prior to the proposed filing, or if you or counsel for the Underwriters shall object to such amendment or supplement. (c) The Company has furnished or will furnish to you, at its expense, as soon as available, as many signed copies of the Registration Statement as originally filed and of all amendments thereto, whether ~~pursuant~~ 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 you may reasonably request, and has furnished or will furnish to each Underwriter, one conformed copy of the ~~Securities Act~~Registration Statement as originally filed and of each amendment thereto (but without exhibits). (d) The Company will deliver to each Underwriter, ~~the Exchange Act or otherwise~~at its expense, from time to time, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company ~~will furnish~~ hereby consents to the ~~Representatives with~~ use of such copies ~~of any such documents a reasonable amount of time prior to such proposed filing or use, as~~ for purposes permitted by the ~~case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing~~1933 Act. The Company will ~~give~~ deliver to each Underwriter, at its expense, as soon as the ~~Representatives notice~~ Registration Statement shall have become effective, and thereafter from time to time as requested 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 each Underwriter may reasonably request. In case you are required to deliver a prospectus within the nine-month period referred to in Section 10(a)(3) of the 1933 Act in connection with the sale of the Shares, the Company will prepare promptly upon request, but at the expense of the Underwriters, such amendment or amendments to the Registration Statement and such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the 1933 Act. (e) The Company will comply to the best of its ~~intention~~ ability with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Shares 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 Shares, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the 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 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 ~~filing pursuant~~ 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 the ~~Exchange Act~~ provisions of Section 4(b), such amendment or ~~Exchange Act Regulations from~~ supplement as may be necessary to correct such untrue statement or omission or to make the ~~Applicable Time~~ Registration Statement or the Prospectus comply with such requirements. (f) The Company will use its best efforts, in cooperation with you, to qualify the ~~Closing Date~~ Shares for offering and ~~will furnish~~ sale under the ~~Representatives with copies~~ applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be obligated to file any ~~such documents~~ general consent to service of process or to qualify as a ~~reasonable amount of time prior to such proposed filing and will~~ foreign corporation in any jurisdiction in which it is not ~~file or use any such document to which the Representatives shall reasonably object in writing~~otherwise so subject. The Company will ~~prepare a final term sheet~~ file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided. (g) The Company will use the ~~“Final Term Sheet”) reflecting~~ net proceeds received by it from the ~~final terms~~ sale of the ~~Bonds~~Shares in the manner specified in the Prospectus under the caption "Use of Proceeds." (h) During a period of five years from the date hereof, the Company will furnish to its stockholders, as soon as practicable after the end of each respective period, annual reports (including financial statements audited by independent public accountants), and unaudited quarterly reports of operations for each of the first three quarters of the fiscal year, and will furnish to you: (i) concurrently with furnishing such reports to its stockholders, statements of operations of the Company for each of the first three quarters in the form ~~and substance reasonably satisfactory~~ furnished to the ~~Representatives~~Company's stockholders; (ii) concurrently with furnishing to its stockholders, a balance sheet of the Company as of the end of such fiscal year, together with statements of operations, of cash flows and of stockholders' equity of the Company for such fiscal year, accompanied by a copy of the certificate or report thereon of independent public accountants; (iii) as soon as they are available, copies of all reports (financial or otherwise) mailed to stockholders; (iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any securities exchange or the NASD; (v) concurrently with its release, every material press release in respect of the Company or its affairs which is released or prepared by the Company; and (vi) any additional information of a public nature concerning the Company or its business that you may reasonably request. During such five-year period, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company are consolidated with any subsidiaries, and shall ~~file such Final Term Sheet as an “Issuer Free Writing Prospectus”~~ be accompanied by similar financial statements for any significant subsidiary that is not so consolidated. (i) Except with respect to grants under the Company's Incentive Stock Plan and Outside Director Plan, for a period of 180 days from the date hereof, the Company will not, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Common Stock or securities convertible into Common Stock, other than to the ~~close of business two Business Days after~~ Underwriters pursuant to this Agreement and other than pursuant to employee benefit plans in existence on the date ~~hereof~~ of this Agreement. (~~“Business Day” shall mean any day other than~~ j) The Company will maintain a ~~Saturday~~transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a ~~Sunday or~~ registrar (which may be the same entity as the transfer agent) for its Common Stock. (k) The Company will use it best efforts to maintain the listing of its shares of Common Stock on NSM. (l) The Company is familiar with the Investment Company Act of 1940, as amended, and the rules and regulations thereunder, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a ~~legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law~~ manner so as to ~~close in The City of New York); provided~~ ensure that the Company ~~shall furnish~~ was not and will not be an "investment company" within the ~~Representatives~~ meaning of the Investment Company Act of 1940 and the rules and regulations thereunder. (m) The Company will supply the Underwriters with copies of ~~any such Final Term Sheet a reasonable amount~~ all correspondence to and from and all documents issued to and by the Commission or the Commission staff in connection with the registration of ~~time prior to such proposed filing and will not use or file any such document to which~~ the ~~Representatives shall reasonably object in writing~~Shares under the 1933 Act.

Appears in 1 contract

Samples: Underwriting Agreement (Simon Transportation Services Inc)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with ~~the several Underwriters~~you as follows: (a) The ~~Company~~Company will promptly notify CS, ~~subject to Section 6(b), will comply with~~ representing the ~~requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing~~Underwriters, (i) ~~when~~ of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or ~~new registration statement relating to the Bonds shall become effective,~~ amendment or ~~any~~ supplement to the Prospectus or any ~~amended~~ document to be filed pursuant to the 1934 Act during any period when the Prospectus ~~shall have been filed~~is required to be delivered under the 1933 Act, (iiiii) of the receipt of any comments or inquiries from the ~~Commission~~Commission relating to the Registration Statement or Prospectus, (~~iii~~iv) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the Prospectus or ~~any document incorporated by reference therein or otherwise deemed to be a part thereof or~~ for additional information, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ the initiation of any proceeding for that purpose, and (vi) of the issuance by any state securities commission or other regulatory authority of any order ~~preventing or~~ suspending the ~~use of any preliminary prospectus,~~ qualification or of the ~~suspension of the~~ exemption from qualification of the ~~Bonds for offering~~ Securities under state securities or ~~sale in any jurisdiction,~~ Blue Sky laws or of the initiation ~~or threatening~~ of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondsthat purpose. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable~~ use its best effort to prevent the issuance by the Commission of any stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company ~~shall~~ will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the second business day immediately succeeding the date hereof. The Company will pay the required Commission filing fees relating to the ~~Bonds~~ Securities within the time required by Rule ~~456(b)(1)(i~~456(b)(1) ~~of the Securities Act Regulations~~ without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The~~ At any time when a Prospectus is (or but for the exemption in Rule 172 would be) required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Securities, the Company will give CS, representing the ~~Representatives~~ Underwriters, notice of its intention to file or prepare any amendment to the Registration Statement or ~~new registration statement relating to the Bonds or~~ any amendment, supplement or revision to either ~~any preliminary prospectus (including any~~ the prospectus included in the ~~Original~~ Registration Statement ~~or amendment thereto~~ at the time it became effective~~) or~~ , to the Prospectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the ~~Securities Act~~1933 Act Regulations), ~~the Exchange Act or otherwise, and the Company~~ will furnish the ~~Representatives~~ Underwriters with copies of any such ~~documents~~ amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such ~~document~~ prospectus to which the ~~Representatives~~ Underwriters or counsel for the Underwriters shall reasonably ~~object~~ object, unless in ~~writing~~the judgment of the Company and its counsel, and after notification to you, such amendment or supplement is required by law. (c) The Company has furnished or will deliver to you, without charge, a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) and as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated or deemed to be incorporated by reference therein but without exhibits filed therewith), as you may reasonably request. (d) The Company will furnish to you, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as you may reasonably request. (e) The Company will comply 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 to be delivered under the 1933 Act in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel or counsel for the Company, to 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, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if, in the opinion of your counsel or counsel for the Company, it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company, at its own expense, will promptly prepare such amendment or supplement as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to a purchaser, be misleading or so that such Prospectus as so amended or supplemented will comply with applicable law, as the case may be, and furnish you such number of copies as you may reasonably request. The Company will ~~give~~ not file any amendment or supplement without first providing the ~~Representatives notice of its intention to make any~~ Underwriters with such ~~filing pursuant~~ amendment or supplement and having obtained the Underwriters’ consent to the ~~Exchange Act~~ filing, which consent shall not be unreasonably withheld unless in the judgment of the Company and its counsel, and after notification to you, such amendment or ~~Exchange Act Regulations~~ supplement is required by law. Neither the Underwriters consent to, nor the delivery of such amendment or supplement, shall constitute a waiver of any of the conditions in Section 6 hereof. (f) The Company will endeavor, in cooperation with you, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than a year from the ~~Applicable Time~~ date of the Prospectus; provided, however, that the Company shall not be obligated to ~~the Closing Date and will furnish the Representatives with copies~~ file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any ~~such documents a reasonable amount~~ jurisdiction in which it is not so qualified or to subject itself to taxation in respect of ~~time prior to such proposed filing and will~~ doing business in any jurisdiction in which it is not ~~file or use any such document to which the Representatives shall reasonably object in writing~~otherwise so subject. The Company will ~~prepare a final term sheet (~~file such statements and reports as may be required by the ~~“Final Term Sheet”) reflecting~~ laws of each jurisdiction in which the ~~final terms~~ Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the ~~Bonds~~legality of the Securities for investment under the laws of such jurisdictions as you may request. (g) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the effective date of the Registration Statement and satisfying the provisions of Section 11(a) of the Act and Rule 158. (h) The Company will use its best efforts in cooperation with you to permit the Securities offered and sold in transactions by you to be eligible for clearance and settlement through The Depository Trust Company. (i) The Company will apply the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the heading “Use of Proceeds.” (j) 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 Company, without your prior consent, which shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and after notification to you, such press release or communication is required by law. (k) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (l) Except as contemplated by this Agreement with respect to the sale of the Securities, for a period of 90 days from the date of the Prospectus, the Company will not, without the prior written consent of CS and UBS, directly or indirectly, offer, pledge, sell, grant any option, right or warrant for the sale of or otherwise dispose of any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (other than stock options or restricted stock grants to employees or directors of the Company or pursuant to the exercise of stock options) or file any registration statement (other than a registration statement on Form S-8) under the 1933 Act with respect to any of the foregoing or Common Stock of the Company. If (1) during the last 17 days of the Initial Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the Initial Lock-Up Period, the Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the Initial Lock-Up Period, the restrictions imposed by this letter shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, as applicable, unless CS and UBS waive, in ~~form~~ writing, such extension. (m) The Company represents and ~~substance reasonably satisfactory~~ agrees that it has not made and will not make any offer relating to the ~~Representatives, and shall file such Final Term Sheet as~~ Securities that would constitute an “Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” ~~prior to~~ as defined in Rule 405 of the ~~close of business two Business Days after the date hereof (“Business Day” shall mean any day~~ 1933 Act, other than as listed on Schedule A, without the prior consent of CS. Any such free writing prospectus consented to by CS is hereinafter referred to as a ~~Saturday~~“Permitted Free Writing Prospectus.” The Company represents that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and has complied and will ~~not use or file~~ comply with the applicable requirements of Rule 164 and Rule 433 of the 1933 Act applicable to any ~~such document to which the Representatives shall reasonably object in writing~~Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.

Appears in 1 contract

Samples: Underwriting Agreement (Be Aerospace Inc)

Certain Covenants of the Company. The Company covenants and agrees with the several ~~Underwriters~~Underwriters and the Forward Counterparties as follows: (a) ~~The Company, subject~~ Subject to Section ~~6(b~~5(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives and the Forward Counterparties immediately, and confirm the notice in ~~writing~~writing (such writing shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication), (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Securities shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement and/or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the ~~Bonds~~Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the ~~Bonds~~ Securities within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).; (b) ~~The Company will~~ To give the Representatives and the Forward Counterparties notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Securities or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives and the Forward Counterparties with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or the Forward Counterparties shall reasonably object in writing. The Company will give the Representatives and the Forward Counterparties notice of its intention to make any such filing pursuant to the Exchange Act or the Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives and the Forward Counterparties with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives ~~shall reasonably object in writing. The Company will prepare a final term sheet (~~or the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives Forward Counterparties shall reasonably object in writing. (c) To furnish to each Underwriter and each Forward Counterparty, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as such party may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives and the Forward Counterparties a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives or the Forward Counterparties reasonably object in writing. (e) To use its best efforts to qualify the Securities and to assist in the qualification of the Securities by the Underwriters or on the Underwriters’ behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate in the United States and Canada, to continue such qualification in effect so long as required for the distribution of the Securities and to reimburse the Underwriters for any expenses (including filing fees and fees and disbursements of counsel) paid by the Underwriters or on the Underwriters’ behalf to qualify the Securities for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Securities, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) To promptly deliver to the Representatives and the Forward Counterparties a true and correct copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as the Representatives and the Forward Counterparties may reasonably request; (g) If at any time prior to the completion of the sale of the Securities by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act, the Company promptly (i) will notify the Representatives and the Forward Counterparties of any such event; (ii) subject to the requirements of paragraph (b) of this Section 5, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters and the Forward Counterparties without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement (i) that is necessary in connection with such a delivery of a prospectus more than nine months after the date of this Agreement or (ii) that relates solely to the activities of any Underwriter or Forward Counterparty shall be borne by the Underwriter or the Forward Counterparty or the dealer or dealers requiring the same; and provided further that the Representatives shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by the Representatives retains any unsold Securities and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Securities has been completed when they are advised by the Representatives that no Underwriter or such dealer retains any Securities. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Securities) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and the Forward Counterparties and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; (h) The Company will, as soon as practicable, make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Securities Act; (i) The Company will pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 5(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters and the Forward Counterparties, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Securities to the Underwriters at the place designated in Section 3 hereof, any fees and expenses relating to the eligibility and issuance of the Securities in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Securities, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Securities; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 5(g) above) any amendment or supplement thereto, to the Underwriters and the Forward Counterparties; (iii) the Company’s costs and expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations 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 Company’s portion of the costs of any aircraft chartered in connection with a road show, if any; and (iv) all fees and expenses in connection with listing the Securities on the New York Stock Exchange; (j) The Company hereby agrees that, without the prior written consent of the Representatives, on behalf of the Underwriters, and the Forward Counterparties, it will not, during the period ending 90 days after the date of the final prospectus supplement included in the Prospectus (the “Lock-Up Period”), directly or indirectly, (i) register, offer, issue, 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 any shares of Common Stock (the “Lock-Up Securities”) or any securities convertible into or exercisable or exchangeable for Lock-Up Securities, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Lock-Up Securities, (iii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (iv) file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action, whether any such transaction described in clause (i), (ii) or (iii) above is to be settled by delivery of Lock-Up Securities or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder and Common Stock issued pursuant to the Forward Agreement and Additional Forward Agreements (if any), (B) the issuance by the Company of shares of Common Stock pursuant to, or the grant of options under the Company’s existing stock option, employee benefit or dividend reinvestment plans (as described in the General Disclosure Package and the Prospectus), or the filing of a registration statement with the Commission relating to the offering of any shares of common stock issued or reserved for issuance under such plans, or (C) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the repurchase of shares of Common Stock, provided that such plan does not provide for the repurchase of Common Stock during the Lock-Up Period; and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives and the Forward Counterparties (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 1 contract

Samples: Underwriting Agreement (PPL Corp)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with ~~the several Underwriters~~you as follows: (a) The ~~Company~~Company will promptly notify CSFB, ~~subject to Section 6(b), will comply with~~ representing the ~~requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing~~Underwriters, (i) ~~when~~ of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or ~~new registration statement relating to the Bonds shall become effective,~~ amendment or ~~any~~ supplement to the Prospectus or any ~~amended~~ document to be filed pursuant to the 1934 Act during any period when the Prospectus ~~shall have been filed~~is required to be delivered under the 1933 Act, (iiiii) of the receipt of any comments or inquiries from the ~~Commission~~Commission relating to the Registration Statement or Prospectus, (~~iii~~iv) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the Prospectus or ~~any document incorporated by reference therein or otherwise deemed to be a part thereof or~~ for additional information, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ the initiation of any proceeding for that purpose, and (vi) of the issuance by any state securities commission or other regulatory authority of any order ~~preventing or~~ suspending the ~~use of any preliminary prospectus,~~ qualification or of the ~~suspension of the~~ exemption from qualification of the ~~Bonds for offering~~ Securities under state securities or ~~sale in any jurisdiction,~~ Blue Sky laws or of the initiation ~~or threatening~~ of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondsthat purpose. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable~~ use its best effort to prevent the issuance by the Commission of any stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company ~~shall pay~~ will provide the ~~required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i)~~ Underwriters with copies of the ~~Securities Act Regulations without regard to~~ form of Prospectus, in such number as the ~~proviso therein~~ Underwriters may reasonably request, and ~~otherwise in accordance~~ file or transmit for filing with ~~Rules 456(b) and 457(r) of~~ the ~~Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table~~ Commission such Prospectus in accordance with Rule ~~456(b)(1)(ii~~424(b) ~~either~~ of the 1933 Act Regulations by the close of business in ~~a post-effective amendment to the Registration Statement or~~ New York on the ~~cover page of a prospectus filed pursuant to Rule 424(b))~~second business day immediately succeeding the date hereof. (b) ~~The~~ At any time when a Prospectus is required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Securities, the Company will give CSFB, representing the ~~Representatives~~ Underwriters, notice of its intention to file or prepare any amendment to the Registration Statement ~~or new registration statement relating to the Bonds~~ (including any filing under Rule 462(b)) or any amendment, supplement or revision to either ~~any preliminary prospectus (including any~~ the prospectus included in the ~~Original~~ Registration Statement ~~or amendment thereto~~ at the time it became effective~~) or~~ , to the Prospectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the ~~Securities Act~~1933 Act Regulations), ~~the Exchange Act or otherwise, and the Company~~ will furnish the ~~Representatives~~ Underwriters with copies of any such ~~documents~~ amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such ~~document~~ prospectus to which the ~~Representatives~~ Underwriters or counsel for the Underwriters shall reasonably ~~object~~ object, unless in ~~writing~~the judgment of the Company and its counsel, and after notification to you, such amendment or supplement is required by law. (c) The Company has furnished or will deliver to you, without charge, a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) and as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated or deemed to be incorporated by reference therein but without exhibits filed therewith), as you may reasonably request. (d) The Company will furnish to you, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as you may reasonably request. (e) The Company will comply 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 to be delivered under the 1933 Act in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel or counsel for the Company, to 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, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if, in the opinion of your counsel or counsel for the Company, it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company, at its own expense, will promptly prepare such amendment or supplement as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to a purchaser, be misleading or so that such Prospectus as so amended or supplemented will comply with applicable law, as the case may be, and furnish you such number of copies as you may reasonably request. The Company will ~~give~~ not file any amendment or supplement without first providing the ~~Representatives notice of its intention to make any~~ Underwriters with such ~~filing pursuant~~ amendment or supplement and having obtained the Underwriters' consent to the ~~Exchange Act~~ filing, which consent shall not be unreasonably withheld unless in the judgment of the Company and its counsel, and after notification to you, such amendment or ~~Exchange Act Regulations~~ supplement is required by law. Neither the Underwriters consent to, nor the delivery of such amendment or supplement, shall constitute a waiver of any of the conditions in Section 6 hereof. (f) The Company will endeavor, in cooperation with you, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than a year from the ~~Applicable Time~~ date of the Prospectus; provided, however, that the Company shall not be obligated to ~~the Closing Date and will furnish the Representatives with copies~~ file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any ~~such documents a reasonable amount~~ jurisdiction in which it is not so qualified or to subject itself to taxation in respect of ~~time prior to such proposed filing and will~~ doing business in any jurisdiction in which it is not ~~file or use any such document to which the Representatives shall reasonably object in writing~~otherwise so subject. The Company will ~~prepare a final term sheet (~~file such statements and reports as may be required by the ~~“Final Term Sheet”) reflecting~~ laws of each jurisdiction in which the ~~final terms~~ Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the ~~Bonds, in form and substance reasonably satisfactory~~ legality of the Securities for investment under the laws of such jurisdictions as you may request. (g) The Company will make generally available to ~~the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to~~ its security holders no later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering the twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (h) The Company will use its best efforts in cooperation with you to permit the Securities offered and sold in transactions by you to be eligible for clearance and settlement through The Depository Trust Company. (i) The Company will apply the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the heading "Use of Proceeds." (j) 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 ~~two Business Days~~ affairs or business prospects of the Company, without your prior consent, which shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and after notification to you, such press release or communication is required by law. (k) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (l) Except as contemplated by this Agreement with respect to the sale of the Securities, for a period of 90 days from the date ~~hereof (“Business Day” shall mean any day other than a Saturday~~of the Prospectus, ~~a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that~~ the Company ~~shall furnish~~ will not, without the ~~Representatives with copies~~ prior written consent of CSFB and UBS, directly or indirectly, offer, pledge, sell, grant any option, right or warrant for the sale of or otherwise dispose of any ~~such Final Term Sheet a reasonable amount~~ share of ~~time prior to such proposed filing and will not use~~ Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any ~~such document~~ registration statement under the 1933 Act with respect to ~~which~~ any of the ~~Representatives shall reasonably object in writing~~foregoing or Common Stock of the Company.

Appears in 1 contract

Samples: Underwriting Agreement (Be Aerospace Inc)

Certain Covenants of the Company. The Company covenants and agrees with ~~the several Underwriters~~each Underwriter as follows: 9 (a) The ~~Company~~Company will use its best efforts to cause the Registration Statement to become effective (if not yet effective at the date and time that this Agreement is executed and delivered by the parties hereto). If the Company elects to rely upon Rule 430A of the 1933 Act Regulations or the filing of the Prospectus is otherwise required under Rule 424(b) of the 1933 Act Regulations, and subject to the provisions of Section ~~6(b)~~3(b) of this Agreement, the Company will comply with the requirements of Rule ~~430B~~ 430A and will file the Prospectus, properly completed, pursuant to the applicable provisions of Rule 424(b) within the time period prescribed, and will notify ~~the Representatives~~ you immediately, and confirm the notice in writing, (i) when the Registration statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ 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, (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration Statement or ~~the filing of a new registration statement or any amendment~~ amend or supplement to the Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement or~~ of any order preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus, or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make~~ 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 ~~stop~~ such order is issued, to obtain the ~~lifting~~ withdrawal thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing.

Appears in 1 contract

Samples: Underwriting Agreement (Motor Cargo Industries Inc)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with ~~the several Underwriters~~you as follows: (a) The ~~Company~~Company will promptly notify CSFB, ~~subject to Section 6(b), will comply with~~ representing the ~~requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing~~Underwriters, (i) ~~when~~ of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or ~~new registration statement relating to the Bonds shall become effective,~~ amendment or ~~any~~ supplement to the Prospectus or any ~~amended~~ document to be filed pursuant to the 1934 Act during any period when the Prospectus ~~shall have been filed~~is required to be delivered under the 1933 Act, (iiiii) of the receipt of any comments or inquiries from the ~~Commission~~Commission relating to the Registration Statement or Prospectus, (~~iii~~iv) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the Prospectus or ~~any document incorporated by reference therein or otherwise deemed to be a part thereof or~~ for additional information, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ the initiation of any proceeding for that purpose, and (vi) of the issuance by any state securities commission or other regulatory authority of any order ~~preventing or~~ suspending the ~~use of any preliminary prospectus,~~ qualification or of the ~~suspension of the~~ exemption from qualification of the ~~Bonds for offering~~ Securities under state securities or ~~sale in any jurisdiction,~~ Blue Sky laws or of the initiation ~~or threatening~~ of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondsthat purpose. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable~~ use its best effort to prevent the issuance by the Commission of any stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company ~~shall pay~~ will provide the ~~required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i)~~ Underwriters with copies of the ~~Securities Act Regulations without regard to~~ form of Prospectus, in such number as the ~~proviso therein~~ Underwriters may reasonably request, and ~~otherwise in accordance~~ file or transmit for filing with ~~Rules 456(b) and 457(r) of~~ the ~~Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table~~ Commission such Prospectus in accordance with Rule ~~456(b)(1)(ii~~424(b) ~~either~~ of the 1933 Act Regulations by the close of business in ~~a post-effective amendment to the Registration Statement or~~ New York on the ~~cover page of a prospectus filed pursuant to Rule 424(b))~~second business day immediately succeeding the date hereof. (b) ~~The~~ At any time when a Prospectus is required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Securities, the Company will give CSFB, representing the ~~Representatives~~ Underwriters, notice of its intention to file or prepare any amendment to the Registration Statement ~~or new registration statement relating to the Bonds~~ (including any filing under Rule 462(b)) or any amendment, supplement or revision to either ~~any preliminary prospectus (including any~~ the prospectus included in the ~~Original~~ Registration Statement ~~or amendment thereto~~ at the time it became effective~~) or~~ , to the Prospectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the ~~Securities Act~~1933 Act Regulations), ~~the Exchange Act or otherwise, and the Company~~ will furnish the ~~Representatives~~ Underwriters with copies of any such ~~documents~~ amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such ~~document~~ prospectus to which the ~~Representatives~~ Underwriters or counsel for the Underwriters shall reasonably ~~object~~ object, unless in ~~writing~~the judgment of the Company and its counsel, and after notification to you, such amendment or supplement is required by law. (c) The Company has furnished or will deliver to you, without charge, a signed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) and as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated or deemed to be incorporated by reference therein but without exhibits filed therewith), as you may reasonably request. (d) The Company will furnish to you, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as you may reasonably request. (e) The Company will comply 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 to be delivered under the 1933 Act in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel or counsel for the Company, to 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, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if, in the opinion of your counsel or counsel for the Company, it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company, at its own expense, will promptly prepare such amendment or supplement as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to a purchaser, be misleading or so that such Prospectus as so amended or supplemented will comply with applicable law, as the case may be, and furnish you such number of copies as you may reasonably request. The Company will ~~give~~ not file any amendment or supplement without first providing the ~~Representatives notice of its intention to make any~~ Underwriters with such ~~filing pursuant~~ amendment or supplement and having obtained the Underwriters' consent to the ~~Exchange Act~~ filing, which consent shall not be unreasonably withheld unless in the judgment of the Company and its counsel, and after notification to you, such amendment or ~~Exchange Act Regulations~~ supplement is required by law. Neither the Underwriters consent to, nor the delivery of such amendment or supplement, shall constitute a waiver of any of the conditions in Section 6 hereof. (f) The Company will endeavor, in cooperation with you, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than a year from the ~~Applicable Time~~ date of the Prospectus; provided, however, that the Company shall not be obligated to ~~the Closing Date and will furnish the Representatives with copies~~ file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any ~~such documents a reasonable amount~~ jurisdiction in which it is not so qualified or to subject itself to taxation in respect of ~~time prior to such proposed filing and will~~ doing business in any jurisdiction in which it is not ~~file or use any such document to which the Representatives shall reasonably object in writing~~otherwise so subject. The Company will ~~prepare a final term sheet (~~file such statements and reports as may be required by the ~~“Final Term Sheet”) reflecting~~ laws of each jurisdiction in which the ~~final terms~~ Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the ~~Bonds~~legality of the Securities for investment under the laws of such jurisdictions as you may request. (g) The Company will make generally available to its security holders no later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering the twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement. (h) The Company will use its best efforts in cooperation with you to permit the Securities offered and ~~substance reasonably satisfactory~~ sold in transactions by you to be eligible for clearance and settlement through The Depository Trust Company. (i) The Company will apply the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the heading "Use of Proceeds." (j) Prior to the ~~Representatives~~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 Company, without your prior consent, which shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and ~~shall~~ after notification to you, such press release or communication is required by law. (k) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (l) Except as contemplated by this Agreement with respect to the sale of the Securities, for a period of 90 days from the date of the Prospectus, the Company will not, without the prior written consent of CSFB and UBS, directly or indirectly, offer, pledge, sell, grant any option, right or warrant for the sale of or otherwise dispose of any share of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the 1933 Act with respect to any of the foregoing or Common Stock of the Company. (m) The Company represents and agrees that it has not made and will not make any offer relating to the Securities that would constitute an issuer free writing prospectus, as defined in Rule 433 of the 1933 Act, other than as listed on Schedule A, without the prior consent of CSFB. Any such ~~Final Term Sheet~~ free writing prospectus consented to by CSFB is hereinafter referred to as ~~an “Issuer~~ a "Permitted Free Writing Prospectus~~” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday~~." The Company represents that it will treat each Permitted Free Writing Prospectus as an "issuer free writing prospectus," as defined in Rule 433, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and has complied and will ~~not use or file any such document to which~~ comply with the ~~Representatives shall reasonably object in writing~~applicable requirements of Rule 433 of the 1933 Act, including timely Commission filing where required, legending and record keeping.

Appears in 1 contract

Samples: Underwriting Agreement (Be Aerospace Inc)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with ~~the several Underwriters~~you as follows: (a) The ~~Company, subject to Section 6(b),~~ Company will ~~comply with the requirements of Rule 430B and will~~ promptly notify the ~~Representatives immediately~~Representative, ~~and confirm~~ representing the ~~notice in writing~~Underwriters, (i) ~~when~~ of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of the Prospectus or any amendment to the Registration Statement or ~~new registration statement relating to the Bonds shall become effective,~~ amendment or ~~any~~ supplement to the Prospectus or any ~~amended~~ document to be filed pursuant to the 1934 Act during any period when the Prospectus ~~shall have been filed~~is required to be delivered under the 1933 Act, (iiiii) of the receipt of any comments or inquiries from the ~~Commission~~Commission relating to the Registration Statement or Prospectus, (~~iii~~iv) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the Prospectus or ~~any document incorporated by reference therein or otherwise deemed to be a part thereof or~~ for additional information, (ivv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ the initiation of any proceeding for that purpose or pursuant to Xxxxxxx 0X xx xxx 0000 Xxx, (xx) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act, and (vii) of the issuance by any state securities commission or other regulatory authority of any order ~~preventing or~~ suspending the ~~use of any preliminary prospectus,~~ qualification or of the ~~suspension of the~~ exemption from qualification of the ~~Bonds for offering~~ Securities under state securities or ~~sale in any jurisdiction,~~ blue sky laws or of the initiation ~~or threatening~~ of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondsthat purpose. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every~~ use its reasonable ~~effort~~ best efforts to prevent the issuance by the Commission of any stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company ~~shall~~ will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the 1933 Act Regulations by the close of business in New York on the second business day immediately succeeding the date hereof. The Company will pay the required Commission filing fees relating to the ~~Bonds~~ Securities within the time required by Rule ~~456(b)(1)(i~~456(b)(1) ~~of the Securities Act Regulations~~ without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The~~ At any time when a Prospectus is (or but for the exemption in Rule 172 would be) required to be delivered under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in connection with sales of the Securities, the Company will give the ~~Representatives~~ Representative, representing the Underwriters, notice of its intention to file or prepare any amendment to the Registration Statement or ~~new registration statement relating to the Bonds or~~ any amendment, supplement or revision to either ~~any preliminary prospectus (including any~~ the prospectus included in the ~~Original~~ Registration Statement ~~or amendment thereto~~ at the time it became effective~~) or~~ , to the Prospectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the ~~Securities Act~~1933 Act Regulations), ~~the Exchange Act or otherwise, and the Company~~ will furnish the ~~Representatives~~ Underwriters with copies of any such ~~documents~~ amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such ~~document~~ prospectus to which the ~~Representatives~~ Underwriters or counsel for the Underwriters shall reasonably ~~object~~ object, unless in ~~writing~~the judgment of the Company and its counsel, and after notification to you, such amendment or supplement is required by law. (c) The Company has furnished or will deliver to you, without charge, a signed copy of the Registration Statement as originally filed and of each subsequent amendment thereto relating to the offering of the Securities (including exhibits filed therewith and documents incorporated or deemed to be incorporated by reference therein) and as many conformed copies of the Registration Statement as originally filed and of each subsequent amendment thereto relating to the offering of the Securities (including documents incorporated or deemed to be incorporated by reference therein but without exhibits filed therewith), as you may reasonably request. (d) The Company will furnish to you, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as you may reasonably request. (e) If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the General Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the General Disclosure Package to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (n) below, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representative may designate, such amendments or supplements to the General Disclosure Package as may be necessary so that the statements in the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that the General Disclosure Package will comply with law. (f) The Company will comply 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 to be delivered under the 1933 Act in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel or counsel for the Company, to 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, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading or if, in the opinion of your counsel or counsel for the Company, it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company, at its own expense, will promptly prepare such amendment or supplement as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing at the time it is delivered to a purchaser, be misleading or so that such Prospectus as so amended or supplemented will comply with applicable law, as the case may be, and furnish you such number of copies as you may reasonably request. The Company will ~~give~~ not file any amendment or supplement without first providing the ~~Representatives notice of its intention to make any~~ Underwriters with such ~~filing pursuant~~ amendment or supplement and having obtained the Underwriters’ consent to the ~~Exchange Act~~ filing, which consent shall not be unreasonably withheld unless in the judgment of the Company and its counsel, and after notification to you, such amendment or ~~Exchange Act Regulations~~ supplement is required by law. Neither the Underwriters consent to, nor the delivery of such amendment or supplement, shall constitute a waiver of any of the conditions in Section 6 hereof. (g) The Company will endeavor, in cooperation with you, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than a year from the ~~Applicable Time~~ date of the Prospectus; provided, however, that the Company shall not be obligated to ~~the Closing Date and will furnish the Representatives with copies~~ file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any ~~such documents a reasonable amount~~ jurisdiction in which it is not so qualified or to subject itself to taxation in respect of ~~time prior to such proposed filing and will~~ doing business in any jurisdiction in which it is not ~~file or use any such document to which the Representatives shall reasonably object in writing~~otherwise so subject. The Company will ~~prepare a final term sheet (~~file such statements and reports as may be required by the ~~“Final Term Sheet”) reflecting~~ laws of each jurisdiction in which the ~~final terms~~ Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for the determination of the ~~Bonds~~legality of the Securities for investment under the laws of such jurisdictions as you may request. (h) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the effective date of the Registration Statement and satisfying the provisions of Section 11(a) of the Act and Rule 158. (i) The Company will use its commercially reasonable efforts in ~~form~~ cooperation with you to permit the Securities offered and ~~substance reasonably satisfactory~~ sold in transactions by you to be eligible for clearance and settlement through The Depository Trust Company. (j) The Company will apply the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the heading “Use of Proceeds.” (k) Prior to the ~~Representatives~~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 Company, without your prior consent, which shall not be unreasonably withheld, unless in the judgment of the Company and its counsel, and ~~shall~~ after notification to you, such press release or communication is required by law. (l) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file ~~such Final Term Sheet~~ all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations. (m) Except as contemplated by this Agreement with respect to the sale of the Securities, for a period of 60 days from the date of the Prospectus, the Company will not, without the prior written consent of the Representative, directly or indirectly, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company and having a tenor of more than one year. (n) The Company represents and agrees that it has not made and will not make any offer relating to the Securities that would constitute an “Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus” ~~prior to~~ as defined in Rule 405 of the ~~close of business two Business Days after the date hereof (“Business Day” shall mean any day~~ 1933 Act, other than as listed on Schedule A, without the prior consent of the Representative. Any such free writing prospectus consented to by the Representative is hereinafter referred to as a ~~Saturday~~“Permitted Free Writing Prospectus.” The Company represents that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and has complied and will ~~not use or file~~ comply with the applicable requirements of Rule 164 and Rule 433 of the 1933 Act applicable to any ~~such document to which the Representatives shall reasonably object in writing~~Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.

Appears in 1 contract

Samples: Underwriting Agreement (Be Aerospace Inc)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with ~~the several Underwriters~~each U.S. Underwriter as follows: (a) The ~~Company~~Company will use its best efforts to cause the Registration Statement to become effective and, if the Company elects to rely upon Rule 430A and subject to Section ~~6(b)~~3(b) hereof, will comply with the requirements of Rule ~~430B~~ 430A and will notify the U.S. Representatives ~~immediately, and confirm the notice in writing,~~ immediately (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ Statement, shall have become effective, or any supplement to the ~~Prospectus~~ Prospectuses or any amended ~~Prospectus~~ Prospectuses shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration Statement or ~~the filing of a new registration statement or any amendment~~ amend or supplement ~~to the~~ any Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional ~~information,~~ information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement ~~or such new registration statement~~ or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make~~ 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 ~~stop~~ 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, (including any filing under Rule 462(b)), file a Term Sheet or file or make any amendment or supplement (i) if the Company has not elected to rely upon Rule 430(A), to the Prospectuses (including amendments of the documents incorporated by reference into the Prospectuses) or (ii) if the Company has elected to rely upon Rule 430A, to either the prospectuses included in the Original Registration Statement at the time it becomes effective or to the Prospectuses (including amendments of the documents incorporated by reference into the Prospectuses or to the Prospectuses pursuant to Item 12 and Rule 412), of which you shall not have previously been advised and furnished a copy, or to which you or counsel for the U.S. Underwriters shall reasonably object in writing. (c) The Company has furnished or will furnish to you and counsel for the U.S. Underwriters, without charge, as many copies (including at least 1 signed copy) 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 19 18 reference into the Prospectuses pursuant to Item 12 and Rule 412) 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 U.S. Underwriter, one conformed copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits). (d) The Company will deliver to each U.S. Underwriter, without charge, from time to time until the later of the effective date of the Original Registration Statement and any Rule 462(b) Registration Statement (or, if the Company has elected to rely upon Rule 430A, until the time the U.S. Price Determination Agreement is executed and delivered), as many copies of each preliminary prospectus as such U.S. 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 to each U.S. Underwriter, without charge, as soon as the Registration Statement shall ~~pay~~ have become effective (or, if the Company has elected to rely upon Rule 430A, as soon as practicable after the U.S. Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when the Prospectus is required ~~Commission filing fees relating~~ to be delivered under the ~~Bonds within~~ 1933 Act, such number of copies of the Prospectuses (as supplemented or amended) as such U.S. Underwriter may reasonably request. (e) The Company will comply in all material respects 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 Shares as contemplated in this Agreement and in the Prospectuses. If at any time when a prospectus is required by the 1933 Act or the 1933 Act Regulations to be delivered in connection with sales of the Shares any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the U.S. Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement any Prospectus in order that the Prospectuses 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 or supplement any Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly upon becoming aware of such event or condition 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 Prospectuses comply with such requirements. 20 19 (f) The Company will use its best efforts, in cooperation with the U.S. Underwriters, to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than one year from the later of the effective date of the Original Registration Statement and any Rule 462(b) 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 ~~Rule 456(b)(1)(i)~~ the laws of each jurisdiction in which the Shares have been qualified as above provided. The company will also supply you with such information as is necessary for the determination of the ~~Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r)~~ legality of the ~~Securities~~ Shares for investment under the laws of such jurisdictions as you may request. (g) The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company (in form complying with the provisions of Rule 158 of the 1933 Act ~~Regulations (including~~Regulations), ~~if applicable, by updating~~ covering a period of 12 months beginning after the ~~“Calculation~~ later of the effective date of the Original Registration ~~Fee” table in accordance with~~ Statement and any Rule ~~456(b)(1)(ii~~462(b) ~~either in~~ Registration Statement and covering a period of 12 months beginning after the effective date of any post-effective amendment to the Registration Statement ~~or on~~ but not later than the ~~cover page~~ first day of ~~a prospectus~~ the Company's fiscal quarter next following such respective effective dates. (h) The Company, during the period when the Prospectuses are required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to ~~Rule 424(b)~~Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective. (i) For a period of two years after the Closing Time, the Company will furnish to you and, upon request, to each U.S. 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 Commission, and such other documents, reports and information as shall be furnished by the Company to its stockholders generally. (j) For a period of 180 days from the date hereof, the Company will not, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Common Stock or securities convertible into Common Stock, other than to the U.S. Underwriters pursuant to this Agreement and the International Underwriters pursuant to the International Purchase 21 20 Agreement (except for options to purchase shares of Common Stock granted to the Company's officers, directors or employees in the ordinary course of business, consistent with past practice, or the exercise of such options and similar options currently outstanding). (bk) If the Company has elected to rely upon Rule 430A, it will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. (l) If the Company has elected to rely on Rule 434, it will comply with the requirements of Rule 434, and the Prospectuses will not be "materially different," as such term is used in Rule 434, from the prospectus included in the Registration Statement at the time it becomes effective. (m) If the Company elects to rely upon Rule 462(b), the Company shall both file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Regulations by the earlier of (i) 10:00 P.M. Eastern time on the date of the U.S. Price Determination Agreement and (ii) the time confirmations are sent or given, as specified by Rule 462(b). (n) If applicable, the Company will comply with all the provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida statutes, and all regulations promulgated thereunder relating to issuers doing business in Cuba. (o) The Company will ~~give~~ use its best efforts to effect the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms listing of the ~~Bonds, in form and substance reasonably satisfactory to~~ Shares on the ~~Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus”~~ New York Stock Exchange on or prior to the ~~close~~ date of ~~business two Business Days after~~ the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writingU.S. Price Determination Agreement.

Appears in 1 contract

Samples: u.s. Purchase Agreement (Borg Warner Automotive Inc)

Certain Covenants of the Company. The Company covenants and agrees with ~~the several Underwriters~~each Underwriter as follows: (a) The ~~Company~~Company will use its best efforts to cause the Registration Statement to become effective (if not yet effective at the date and time that this Agreement is executed and delivered by the parties hereto). If the Company elects to rely upon Rule 430A of the 1933 Act Regulations or the filing of the Prospectus is otherwise required under Rule 424(b) of the 1933 Act Regulations, and subject to the provisions of Section ~~6(b)~~4(b) of this Agreement, the Company will comply with the requirements of Rule ~~430B~~ 430A and will file the Prospectus, properly completed, pursuant to the applicable provisions of Rule 424(b) , or a Term Sheet pursuant to and in accordance with Rule 434, within the time period prescribed. If the Company elects to rely upon Rule 462(b) , the Company shall file a 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. The Company will notify ~~the Representatives immediately,~~ you immediately and confirm the notice in writing, : (i) when the Registration Statement, 462(b) Registration Statement or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ 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, ; (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration Statement or ~~the filing of a new registration statement~~ 462(b) Registration Statement or ~~any amendment~~ amend or supplement to the Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional information, ; and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ any 462(b) Registration Statement or of any order preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus, or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make~~ 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 ~~stop~~ such order is issued, to obtain the ~~lifting~~ withdrawal thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will ~~give the Representatives notice of its intention to~~ not at any time file or ~~prepare~~ make any amendment to the Registration Statement or ~~new registration statement relating~~ any amendment or supplement (i) to the ~~Bonds or any amendment~~Prospectus, ~~supplement or revision~~ if the Company has not elected to rely upon Rule 430A; (ii) if the Company has elected to rely upon Rule 430A, to either ~~any preliminary prospectus (including any prospectus~~ the Prospectus included in the ~~Original~~ Registration Statement ~~or amendment thereto~~ at the time it ~~became effective)~~ becomes effective or to the ~~Prospectus~~Prospectus filed in accordance with Rule 424(b) or any Term Sheet filed in accordance with Rule 434; or (iii) if the Company has elected to rely upon Rule 462(b) , to any 462(b) Registration Statement, in either case if you shall not have previously been advised and furnished a copy thereof a reasonable time prior to the proposed filing, or if you or counsel for the Underwriters shall object to such amendment or supplement. (c) The Company has furnished or will furnish to you, at its expense, as soon as available, as many signed copies of the Registration Statement as originally filed and of all amendments thereto, whether ~~pursuant~~ 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 you may reasonably request, and has furnished or will furnish to each Underwriter, one conformed copy of the ~~Securities Act~~Registration Statement as originally filed and of each amendment thereto (but without exhibits). (d) The Company will deliver to each Underwriter, ~~the Exchange Act or otherwise~~at its expense, from time to time, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company ~~will furnish~~ hereby consents to the ~~Representatives with~~ use of such copies ~~of any such documents a reasonable amount of time prior to such proposed filing or use, as~~ for purposes permitted by the ~~case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing~~1933 Act. The Company will ~~give~~ deliver to each Underwriter, at its expense, as soon as the ~~Representatives notice~~ Registration Statement shall have become effective, and thereafter from time to time as requested during the period when the Prospectus is required to be delivered under the 1933 Act, such number of ~~its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with~~ copies of ~~any such documents a reasonable amount of time prior to such proposed filing and will not file~~ the Prospectus (as supplemented or ~~use any such document to which the Representatives shall~~ amended) as each Underwriter may reasonably ~~object in writing~~request. The Company will ~~prepare a final term sheet (~~comply to the ~~“Final Term Sheet”) reflecting~~ best of its ability with the ~~final terms~~ 1933 Act and the 1933 Act Regulations so as to permit the completion of the ~~Bonds,~~ distribution of the Shares as contemplated in ~~form~~ this Agreement and ~~substance reasonably satisfactory~~ in the Prospectus. In case you are required to deliver a prospectus within nine months after the ~~Representatives,~~ time of issue of the Prospectus or any Term Sheet in connection with the offering or sale of the Shares and if at such time any event shall ~~file such Final~~ have occurred as a result of which the Prospectus or any Term Sheet as then amended or supplemented would include an ~~“Issuer Free Writing Prospectus” prior~~ untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus or any Term Sheet is delivered, not misleading, or, if for any reason it shall be necessary during such period to amend or supplement the Prospectus or any Term Sheet in order to comply with the 1933 Act or the 1933 Act Regulations, the Company will notify you and upon your request prepare promptly and furnish without charge to each Underwriter and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Prospectus or any Term Sheet or a supplement to the ~~close~~ Prospectus or any Term Sheet which will correct such statement or omission or effect such compliance. In case any Underwriter is required to deliver a prospectus in connection with sales of ~~business two Business Days~~ any of the Shares at any time nine months or more after the ~~date hereof~~ time of issue of the Prospectus or any Term Sheet, upon your request but at the expense of such Underwriter, the Company will prepare and deliver to such Underwriter as many copies as you may request of an amended or supplemented Prospectus or any Term Sheet complying with the requirements of Section 10(a) (~~“Business Day” shall mean any day~~ 3) of the 1933 Act. (e) The Company will use its best efforts, in cooperation with you, to qualify the Shares for offering and sale under the applicable securities laws of such states and other ~~than a Saturday~~jurisdictions as you may designate and to maintain such qualifications in effect for as long as may be necessary to complete the distribution of the Shares; PROVIDED, ~~a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided~~ HOWEVER, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided. (f) The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds." (g) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the "effective date of the Registration Statement" (as defined in Rule 158(c) of the 1933 Act Regulations), an earnings statement (in reasonable detail but which need not be audited) complying with the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder and covering a period of at least 12 months beginning after the effective date of the Registration Statement. (h) During a period of five years from the date hereof, the Company will furnish to its stockholders, as soon as practicable after the ~~Representatives~~ end of each respective period, annual reports (including financial statements audited by independent public accountants) and will furnish to you: (i) concurrently with furnishing to its stockholders, a balance sheet of the Company as of the end of such fiscal year, together with statements of operations, of cash flows and of stockholders' equity of the Company for such fiscal year, accompanied by a copy of the certificate or report thereon of independent public accountants; (ii) as soon as they are available, copies of all reports (financial or otherwise) mailed to stockholders; (iii) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any securities exchange or the NASD; (iv) concurrently with its release, every material press release in respect of the Company or its affairs which is released or prepared by the Company; and (v) any additional information of a public nature concerning the Company or its business that you may reasonably request. During such five-year period, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company are consolidated with any subsidiaries, and shall be accompanied by similar financial statements for any significant Subsidiary that is not so consolidated. (i) For a period of 180 days from the date hereof, the Company will not, without your prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Class A Common Stock or securities convertible into Class A Common Stock, other than to the Underwriters pursuant to this Agreement except for: (i) contributions to employee benefit plans in existence on the date of the execution of this Agreement or as contemplated by the Prospectus; (ii) the grant of options pursuant to the Company's Stock Option Plan in effect at the time of execution of this Agreement; or (iii) pursuant to an exercise of stock options or sale of Common Stock pursuant to a "cashless exercise" of stock options which are outstanding on the date of the Prospectus or upon conversion of convertible securities. (j) For three years after the effective date of the Registration Statement, the Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Class A Common Stock. (k) For three years after the effective date of the Registration Statement, the Company will use its best efforts to maintain the listing of its shares of Class A Common Stock on NSM. (l) The Company is familiar with the Investment Company Act of 1940, as amended, and the rules and regulations thereunder, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner so as to ensure that the Company was not and will not be an "investment company" within the meaning of the Investment Company Act of 1940 and the rules and regulations thereunder. (m) The Company will not, and will use its best efforts to cause its officers, directors and affiliates not to: (i) take, directly or indirectly prior to the termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares; (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Shares; or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company. (n) If at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your reasonable opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement or amendment of the Prospectus) and after written notice from you advising the Company to the effect set forth above, the Company agrees to forthwith prepare, consult with you concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to you, responding to or commenting on such rumor, publication or event to the extent it can do so consistent with its legal obligations. (o) The Company will file timely and accurate information with the Commission in accordance with Rule 463 of the 1933 Act Regulations or any successor provision. (p) The Company will supply the Underwriters with copies of ~~any such Final Term Sheet a reasonable amount~~ all correspondence to and from and all documents issued to and by the Commission or the Commission staff in connection with the registration of ~~time prior to such proposed filing and will not use or file any such document to which~~ the ~~Representatives shall reasonably object in writing~~Shares under the 1933 Act.

Appears in 1 contract

Samples: Underwriting Agreement (Republic Bancorp Inc /Ky/)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with the ~~several Underwriters~~Underwriter as follows: (a) The ~~Company~~Company shall use its best efforts to cause the Registration Statement and any amendments thereto, ~~subject~~ if not effective at the time of execution of this Agreement, to ~~Section 6(b)~~become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then the Company will ~~comply~~ prepare and file in accordance with Rule 430A and Rule 424(b) copies of the ~~requirements of~~ Prospectus or, if required by Rule ~~430B and will~~ 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted. (b) The Company shall notify the ~~Representatives~~ Underwriter immediately, and confirm ~~the~~ such notice in writing, : (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds shall~~ Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus ~~shall have~~ has been filed, ; (ii) of the receipt of any comments or requests from the ~~Commission,~~ Commission relating to the Registration Statement or the Prospectus; (iii) of any request by of the Commission ~~for any amendment~~ to amend or supplement the Registration ~~Statement~~ Statement, any Preliminary Prospectus or the ~~filing of a new registration statement or any amendment or supplement to the~~ Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional information, ; and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration ~~Statement or such new registration statement or of any order~~ Statement, preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus or the Prospectus, or ~~of the suspension of~~ suspending the qualification of any of the ~~Bonds~~ Designated Shares for offering or sale in any ~~jurisdiction,~~ jurisdiction or the institution or threat of ~~the initiation or threatening~~ institution of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company ~~will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable effort~~ shall use its best efforts to prevent the issuance of any such stop order or of any other such order and, if any ~~stop~~ such order is issued, to ~~obtain~~ cause such order to be withdrawn or lifted as soon as possible. (c) The Company shall furnish to the ~~lifting thereof at~~ Underwriter, from time to time without charge, as soon as available, as many copies as the ~~earliest possible moment~~Underwriter may reasonably request of (i) the registration statement as originally filed and of all amendments thereto including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto. (d) During the time when a prospectus is required to be delivered under the 1933 Act, the Company shall 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 Designated Shares as contemplated herein and in the Prospectus. The Company shall ~~pay the required Commission filing fees relating~~ not file any amendment to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment registration statement as originally filed or to the Registration Statement ~~or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to~~ and shall not file ~~or prepare~~ any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which the Underwriter shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which the Underwiter or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel, to amend or supplement the Registration Statement or ~~new registration statement relating to~~ the ~~Bonds~~ Prospectus in connection with the distribution of the Designated Shares, the Company shall forthwith amend or ~~any amendment,~~ supplement ~~or revision to either any preliminary prospectus (including any prospectus included in~~ the ~~Original~~ Registration Statement or ~~amendment thereto at the time it became effective) or to~~ the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, by preparing and ~~will~~ filing with the Commission (provided the Underwriter or counsel for the Underwriter does not ~~file or use any such document to which the Representatives shall~~ reasonably ~~object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant~~ object), and furnishing to the ~~Exchange Act~~ Underwriter, such number of copies as the Underwriter may reasonably request of an amendment or ~~Exchange Act Regulations from~~ amendments of, or a supplement or supplements to, the ~~Applicable Time to~~ Registration Statement or the ~~Closing Date and will furnish~~ Prospectus, as the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet case may be (~~the “Final Term Sheet”) reflecting the final terms of the Bonds,~~ in form and substance reasonably satisfactory to the ~~Representatives~~Underwriter and counsel for the Underwriter). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and ~~shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior~~ furnishing to the ~~close~~ Underwriter, such number of ~~business two Business Days after~~ copies as the ~~date hereof (“Business Day” shall mean any day other than a Saturday~~Underwriter may reasonably request of an amendment or amendments of, ~~a Sunday~~ or a ~~legal holiday~~ supplement or supplements to, the Prospectus (in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a ~~day on~~ material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which ~~banking institutions~~ they were made, not misleading. (e) The Company shall cooperate with the Underwriter and counsel for the Underwriter in order to qualify the Designated Shares for offering and sale under the securities or ~~trust companies are authorized or obligated by law to close~~ blue sky laws of such jurisdictions within the United States of America as the Underwriter may reasonably request and shall continue such qualifications in ~~The City~~ effect so long as may be advisable for distribution of ~~New York)~~the Designated Shares; ~~provided~~ provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Company shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Shares have been qualified as above. The Company will notify the Underwriter immediately of, and confirm in writing, the suspension of qualification of the Designated Shares or threat thereof in any jurisdiction. (f) The Company shall make generally available to its security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to the ~~Representatives~~ Underwriter as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated earnings statement of the Company conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158. (g) The Company shall use the proceeds from the sale of the Designated Shares to be sold hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds." (h) For five years from the Effective Date, the Company shall furnish to the Underwriter copies of all reports and communications (financial or otherwise) furnished by the Company to the holders of the Designated Shares as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any other national securities exchange or self-regulatory organization, and such ~~Final Term Sheet~~ other documents, reports and information concerning the business and financial condition of the Company as the Underwriter may reasonably request, other than such documents, reports and information for which the Company has the legal obligation not to reveal to the Underwriter. (i) For a ~~reasonable amount~~ period of ~~time~~ 90 days from the Effective Date, the Company shall not, without the Underwriter's prior written consent, directly or indirectly offer, sell, contract to sell or otherwise dispose of any shares of the Company's equity securities, any securities convertible or exchangeable for such ~~proposed filing~~ equity securities or any other rights to acquire such equity securities, other than (A) Designated Shares issued and sold to the Underwriter pursuant to this Agreement, (B) Common Stock issued upon exercises of employee stock options outstanding on the date hereof, and (C) Common Stock issued upon conversion of the Company's outstanding Series C Preferred Stock, as described in the Prospectus. The Company will cause each of its executive officers and directors, and beneficial owners of more than five percent of the Common Stock (other that the Independent Bankshares, Inc. Employee Stock Ownership Plan) to deliver to the Underwriter on or before the date of this Agreement, an agreement satisfactory in form and substance to the Underwriter and counsel for the Underwriter whereby each such person agrees, for a period of 90 days from the Effective Date, not to, directly or indirectly, offer, sell, contract to sell or otherwise dispose of any shares of the Company's equity securities, any securities convertible or exchangeable for the Company's equity securities or any other rights to acquire such equity securities without the prior written consent of the Underwriter. (j) The Company shall use its best efforts to cause the Designated Shares to become listed on the American Stock Exchange, Inc. or in lieu thereof a national securities exchange or self-regulatory organization, and to remain so listed for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Underwriter. (k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriter's Option to purchase the Option Shares shall expire, or (ii) the day following the Option Closing Date with respect to any Option Shares that the Underwriter shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Company, Bancorp nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Company, Bancorp or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not ~~use~~ be any material change in the financial position, capital stock, or ~~file~~ any ~~such document~~ material increase in long-term debt, obligations under capital leases or short-term borrowings (except for repurchase agreements in the ordinary course of business consistent with past practice) of the Company and the Company Subsidiaries, or Bancorp and the Bancorp Subsidiaries, as the case may be, on a consolidated basis. (l) Neither the Company nor Bancorp shall take, directly or indirectly, any action designed to result in or which has constituted or which would reasonably be expected to (i) cause or result in stabilization or manipulation of the ~~Representatives shall reasonably object in writing~~price of any security of the Company to facilitate the sale or resale of the Designated Shares, or (ii) otherwise violate the Commission's Regulation M. (m) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, Bancorp, the Subsidiaries or the offering of the Designated Shares without the Underwriter's prior written consent.

Appears in 1 contract

Samples: Underwriting Agreement (Independent Capital Trust)

Certain Covenants of the Company. The Company covenants and agrees with the several Underwriters: (a) The Company, subject to Section 6(b), will comply with the requirements of Rule 430B and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Bonds shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) substantially in the form attached as Annex I hereto reflecting the final terms of the Bonds~~, in form and substance reasonably satisfactory to the Representatives~~, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing.

Appears in 1 contract

Samples: Underwriting Agreement (PPL Corp)

Certain Covenants of the Company. The Company covenants and agrees with the several Underwriters: (a) ~~The Company, subject~~ Subject to Section 6(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Bonds shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The Company will~~ To give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act, Securities Act or ~~Exchange~~ Securities Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) substantially in the form attached as Annex I hereto reflecting the final terms of the Bonds~~, in form and substance reasonably satisfactory to the Representatives~~, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in ~~The City of New York)~~accordance with Rule 433; provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing. (c) To furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as each Underwriter may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives reasonably object in writing. (e) To use its best efforts to qualify the Bonds and to assist in the qualification of the Bonds by you or on your behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as you may designate, to continue such qualification in effect so long as required for the distribution of the Bonds and to reimburse you for any expenses (including filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the Bonds for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that the Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Bonds, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) To promptly deliver to you a true and correct copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as you may reasonably request; (g) If at any time prior to the completion of the sale of the Bonds by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with applicable law, the Company promptly (i) will notify the Representatives of any such event; (ii) subject to the requirements of paragraph (b) of this Section 6, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement to the Prospectus (x) that is necessary in connection with such a delivery of a supplemented or amended Prospectus more than nine months after the date of this Agreement or (y) that relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Bonds and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Bonds has been completed when they are advised by you that no such Underwriter or dealer retains any Bonds. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Bonds) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (h) As soon as practicable, to make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Securities Act; (i) To pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 6(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Bonds to the Underwriters at the place designated in Section 5 hereof, any fees and expenses relating to the eligibility and issuance of the Bonds in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Bonds, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Bonds; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 6(g) above) any amendment or supplement thereto, to the Underwriters; (iii) any and all fees payable in connection with the rating of the Bonds; (iv) all costs and expenses relating to the creation, filing or perfection of the security interests under the Indenture; and (v) the reasonable fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Bonds; (j) During the period from the date of this Agreement through the Closing Date, the Company shall not, without the Representatives’ prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Bonds, any security convertible into or exchangeable into or exercisable for Bonds or any debt securities substantially similar to the Bonds (except for the Bonds issued pursuant to this Agreement and for the remarketing of certain tax exempt bonds previously issued on the Company’s behalf); and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 1 contract

Samples: Underwriting Agreement (LG&E & KU Energy LLC)

Certain Covenants of the Company. The Company covenants and agrees with the ~~several Underwriters~~Selling Shareholder and each Underwriter as follows: a. The Company will use its best efforts to cause the Registration Statement to become effective (aif not yet effective at the date and time that this Agreement is executed and delivered by the parties hereto). If the Company elects to rely upon Rule 430A of the 1933 Act Regulations or the filing of the Prospectus is otherwise required under Rule 424(b) ~~The Company~~of the 1933 Act Regulations, ~~subject to Section 6(b),~~ the Company will comply with the requirements of Rule ~~430B~~ 430A and will file the Prospectus, properly completed, pursuant to the applicable provisions of Rule 424(b), or a Term Sheet pursuant to and in accordance with Rule 434, within the time period prescribed. If the Company elects to rely upon Rule 462(b) of the 1933 Act Regulations, the Company shall file a 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. The Company will notify ~~the Representatives~~ you immediately, and confirm the notice in writing, (i) when the Registration Statement, 462(b) Registration Statement or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ 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, (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration Statement or ~~the filing of a new registration statement~~ 462(b) Registration Statement or ~~any amendment~~ amend or supplement to the Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ any 462(b) Registration Statement or of any order preventing or suspending the use of any ~~preliminary prospectus,~~ Preliminary Prospectus or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any ~~proceedings~~ proceeding for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make~~ 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 ~~stop~~ such order is issued, to obtain the ~~lifting~~ withdrawal thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing.

Appears in 1 contract

Samples: Underwriting Agreement (Unifab International Inc)

Certain Covenants of the Company. The Company covenants and agrees with ~~the several Underwriters~~each Underwriter as follows: (a) The ~~Company~~Company will use its best efforts to cause the Registration Statement to become effective (if not yet effective at the date and time that this Agreement is executed and delivered by the parties hereto). If the Company elects to rely upon Rule 430A of the 1933 Act Regulations or the filing of the Prospectus is otherwise required under Rule 424(b) of the 1933 Act Regulations, ~~subject to Section 6(b),~~ the Company will comply with the requirements of Rule ~~430B~~ 430A and will file the Prospectus, properly completed, pursuant to the applicable provisions of Rule 424(b), or a Term Sheet pursuant to and in accordance with Rule 434, within the time period prescribed. If the Company elects to rely upon Rule 462(b) of the 1933 Act Regulations, the Company shall file a 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. The Company will notify ~~the Representatives~~ you immediately, and confirm the notice in writing, (i) when the Registration Statement, 462(b) Registration Statement or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ 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, (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration Statement or ~~the filing of a new registration statement~~ 462(b) Registration Statement or ~~any amendment~~ amend or supplement to the Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ any 462(b) Registration Statement or of any order preventing or suspending the use of any ~~preliminary prospectus,~~ Preliminary Prospectus or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any ~~proceedings~~ proceeding for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make~~ 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 ~~stop~~ such order is issued, to obtain the ~~lifting~~ withdrawal thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will ~~give the Representatives notice of its intention to~~ not at any time file any amendment or ~~prepare~~ supplement or make any amendment to (i) the Registration Statement, or (ii) to the Prospectus, if the Company has not elected to rely upon Rule 430A, (iii) if the Company has elected to rely upon Rule 430A, to either the Prospectus included in the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it ~~became effective)~~ becomes effective or to the Prospectus filed in accordance with Rule 424(b) or any Term Sheet filed in accordance with Rule 434, or (iv) if the Company has elected to rely upon Rule 462(b), to any 462(b) Registration Statement, in any case if you shall not have previously been advised and furnished a copy thereof a reasonable time prior to the proposed filing, or if you or counsel for the Underwriters shall object to such amendment or supplement. (c) The Company has furnished or will furnish to you, at its expense, as soon as available, three 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 and signed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish to each Underwriter, one conformed copy of the Registration Statement as originally filed and of each amendment thereto. (d) The Company will deliver to each Underwriter, at the Company's expense, from time to time, as many copies of each Preliminary Prospectus as such 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 to each Underwriter, at the Company's expense, as soon as the Registration Statement shall have become effective and thereafter from time to time as requested 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 each Underwriter may reasonably request. The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and in the Prospectus. If the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus or any Term Sheet in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus or any Term Sheet as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus or any Term Sheet is delivered not misleading, or, if for any reason it shall be necessary during such same period to amend or supplement the Prospectus or any Term Sheet in order to comply with the 1933 Act or the 1933 Act Regulations, the Company will notify you and upon your request prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as you may from time to time reasonably request of an amended Prospectus or any Term Sheet or a supplement to the Prospectus or any Term Sheet or an amendment or supplement to any such incorporated document which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus or any Term Sheet, upon your request but at the expense of such Underwriter, the Company will prepare and deliver to such Underwriter as many copies as you may request of an amended or supplemented Prospectus or any Term Sheet complying with Section 10(a)(3) of the 1933 Act. (e) The Company will use its best efforts to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for as long as may be necessary to complete the distribution of the Shares; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to make any undertakings in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided. (f) The Company will make generally available to its security holders as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the "effective date of the Registration Statement" (as defined in Rule 158(c) of the 1933 Act Regulations), an earnings statement (in reasonable detail but which need not be audited) complying with the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder and covering a period of at least 12 months beginning after the effective date of the Registration Statement. (g) The Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds." (h) During a period of five years after the date hereof, the Company will furnish to you: (i) if and at the time it furnishes such reports to its securityholders, statements of operations of the Company for each of the first three quarters of each fiscal year in the form furnished to the Company's securityholders; (ii) concurrently with furnishing to its securityholders, a balance sheet of the Company as of the end of such fiscal year, together with statements of operations, of cash flows and of stockholders' equity of the Company for such fiscal year, accompanied by a copy of the certificate or report thereon of independent public accountants; (iii) as soon as they are available, copies of all reports (financial or otherwise) mailed to securityholders; (iv) as soon as they are available, copies of all reports and financial statements furnished to or filed with the Commission, any securities exchange or the National Association of Securities Dealers, Inc. (the "NASD"); (v) every material press release in respect of the Company or its affairs which is released by the Company; and (vi) any additional information of a public nature concerning the Company or its business that you may reasonably request. During such five-year period, the foregoing financial statements shall be on a consolidated basis to the extent that the accounts of the Company are consolidated with any subsidiaries, and shall be accompanied by similar financial statements for any significant subsidiary that is not so consolidated. (i) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus, the Company will not, without the prior written consent of Xxxxxx Xxxxxx & Company, Inc., (a) 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 or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities Convertible into or exercisable or exchangeable for Common Stock, or (b) enter into any swap or other arrangement that transfers all or a portion of the economic consequences associated with the ownership of Common Stock (regardless of whether any of the transactions described in clause (a) or (b) is to be settled by the delivery of Common Stock or such other securities, in cash or otherwise) except pursuant to the ~~Securities Act~~Company's 1998 Stock Plan (as specified in the Prospectus under the caption "Management") or in connection with the acquisition of businesses or assets by the Company or a subsidiary of the Company or in connection with the warrants to be issued 12 to Xxxxxx Xxxxxx & Company, Inc. as described in the ~~Exchange Act or otherwise~~Prospectus, and the Company will ~~furnish~~ obtain the ~~Representatives~~ undertaking of each person who is a shareholder of the Company (individually, a "Shareholder" and collectively, the "Shareholders") as of the date of this Agreement not to engage in any of the aforementioned transactions on their own behalf except in connection with ~~copies~~ any gift of ~~any such documents~~ Common Stock by a ~~reasonable amount~~ Shareholder to a donee who agrees in writing for the benefit of ~~time prior~~ the Underwriters to be bound by the foregoing restrictions with respect to such ~~proposed filing or use~~Common Stock. (j) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar (which may be the same entity as the transfer agent) for its Common Stock. (k) The Company will cause the Shares to be listed, subject to notice of issuance, on the Nasdaq National Market and will use its best efforts to maintain the listing of the Shares on the Nasdaq National Market. (l) The Company is familiar with the Investment Company Act of 1940, as amended, and the ~~case may be~~rules and regulations thereunder, and has in the past conducted its affairs, and will in the future conduct its affairs, in such a manner so as to ensure that the Company was not ~~file~~ and will not be an "investment company" or ~~use any such document to which~~ an entity "controlled" by an "investment company" within the ~~Representatives shall reasonably object in writing.~~ meaning of the Investment Company Act of 1940, as amended. (m) The Company will ~~give~~ not, and will use its best efforts to cause its officers, directors and affiliates not to, in violation of Regulation M of the ~~Representatives~~ Securities Exchange Act of 1934 (the "1934 Act") (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company. (n) If at any time during the 30-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your reasonable opinion the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice ~~of its intention to make any such filing pursuant~~ from you advising the Company to the ~~Exchange Act~~ effect set forth above, the Company agrees to consult with you concerning the substance and dissemination of a press release or ~~Exchange Act Regulations from the Applicable Time~~ other public statement responding to ~~the Closing Date and will furnish the Representatives with copies of any~~ or commenting on such ~~documents a reasonable amount of time prior to such proposed filing and will not file~~ rumor, publication or ~~use any such document to which the Representatives shall reasonably object in writing.~~ event. (o) The Company will ~~prepare~~ timely complete all required filings and otherwise fully comply in a ~~final term sheet (the “Final Term Sheet”) reflecting the final terms~~ timely manner with all provisions of the ~~Bonds~~1934 Act, and the rules and regulations of the Commission thereunder, in ~~form and substance reasonably satisfactory to~~ connection with the ~~Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to~~ registration of the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writingShares thereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Conrad Industries Inc)

Certain Covenants of the Company. The Company covenants and agrees with the several Underwriters: (a) ~~The Company, subject~~ Subject to Section 6(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Bonds shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Bonds for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The Company will~~ To give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act, Securities Act or ~~Exchange~~ Securities Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) substantially in the form attached as Annex I hereto reflecting the final terms of the Bonds~~, in form and substance reasonably satisfactory to the Representatives~~, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in ~~The City of New York)~~accordance with Rule 433; provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing. (c) To furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as each Underwriter may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives reasonably object in writing. (e) To use its best efforts to qualify the Bonds and to assist in the qualification of the Bonds by you or on your behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as you may designate, to continue such qualification in effect so long as required for the distribution of the Bonds and to reimburse you for any expenses (including filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the Bonds for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that the Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Bonds, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) Promptly to deliver to you one signed copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as you may reasonably request; (g) If at any time prior to the completion of the sale of the Bonds by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Prospectus to comply with applicable law, the Company promptly (i) will notify the Representatives of any such event; (ii) subject to the requirements of paragraph (b) of this Section 6, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement to the Prospectus (x) that is necessary in connection with such a delivery of a supplemented or amended Prospectus more than nine months after the date of this Agreement or (y) that relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Bonds and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Bonds has been completed when they are advised by you that no such Underwriter or dealer retains any Bonds. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Bonds) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (h) As soon as practicable, to make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Securities Act; (i) To pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 6(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Bonds to the Underwriters at the place designated in Section 5 hereof, any fees and expenses relating to the eligibility and issuance of the Bonds in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Bonds, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Bonds; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 6(g) above) any amendment or supplement thereto, to the Underwriters; (iii) any and all fees payable in connection with the rating of the Bonds; (iv) the Company’s costs and expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Bonds, 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 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 Company’s portion of the costs of any aircraft chartered in connection with the road show; (v) all costs and expenses relating to the creation, filing or perfection of the security interests under the Indenture; and (vi) the reasonable fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Bonds; (j) During the period from the date of this Agreement through the Closing Date, the Company shall not, without the Representatives’ prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Bonds, any security convertible into or exchangeable into or exercisable for Bonds or any debt securities substantially similar to the Bonds (except for the Bonds issued pursuant to this Agreement); and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Bonds that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 1 contract

Samples: Underwriting Agreement (PPL Corp)

Certain Covenants of the Company. The Company ~~covenants and agrees with the several Underwriters~~hereby agrees: (a) ~~The Company, subject~~ to ~~Section 6(b), will~~ comply with the requirements of Rule ~~430B~~ 430B, subject to Section 4(b), and ~~will~~ to notify the ~~Representatives immediately~~Underwriters promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement ~~or new registration statement relating to the Bonds~~ shall become ~~effective,~~ effective or any amendment or supplement to the Prospectus or any ~~amended~~ supplement to the Disclosure Package, Permitted Free Writing Prospectus or any Written Testing-the-Waters Communication shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the ~~Prospectus or~~ Prospectus, including any document incorporated by reference therein or ~~otherwise deemed to be a part thereof or~~ for additional information, including concerning any Testing-the-Waters Communication, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ any post-effective amendment thereto or of any order preventing or suspending the use of any ~~preliminary prospectus~~Pre-Pricing Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the ~~Securities~~ Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the ~~Securities~~ Act in connection with the offering of the ~~Bonds~~Shares. The Company will effect ~~the~~ all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8))) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop ~~order~~ order, prevention or suspension and, if any ~~stop~~ such order is issued, to obtain the lifting thereof at the earliest possible moment; (b) to comply with the Act and the Exchange Act so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and in the Disclosure Package and the Prospectus. ~~The Company shall pay the required Commission filing fees~~ If at any time when a prospectus relating to the ~~Bonds within~~ Shares is (or, but for the exception afforded by Rule 172 under the Act, would be) required by the Act to be delivered in connection with sales of the Shares, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include any 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 ~~required by Rule 456(b)(1)(i~~it is delivered to a purchaser or (iii) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to amend the Registration Statement or on amend or supplement the ~~cover page~~ Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the Act, the Company will promptly (A) give the Underwriters notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such requirements and, a ~~prospectus filed~~ reasonable amount of time prior to any proposed filing or use, furnish the Underwriters with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Underwriters or counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Underwriters notice of any filings made by it pursuant to ~~Rule 424(b)). (b) The~~ the Exchange Act within 48 hours prior to the Applicable Time; the Company will give the ~~Representatives~~ Underwriters notice of its intention to ~~file or prepare~~ make any ~~amendment~~ such filing from the Applicable Time to the ~~Registration Statement~~ date of the closing of the purchase of the Firm Shares or ~~new registration statement relating to~~ the ~~Bonds or any amendment~~Additional Shares, ~~supplement or revision to either any preliminary prospectus (including any prospectus included in~~ as the ~~Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise~~case may be, and ~~the Company~~ will furnish the ~~Representatives~~ Underwriters with copies of any such documents a reasonable amount of time prior to such proposed ~~filing or use~~filing, as the case may be, and, subject to the requirements of applicable laws and regulations, will not file or use any such document to which the ~~Representatives~~ Underwriters or counsel for the Underwriters shall reasonably ~~object in writing~~object; (c) to the extent not available through XXXXX, to furnish or deliver to the Underwriters, without charge, upon request, (i) copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and (ii) copies of all consents and certificates of experts; (d) to have delivered to the Underwriters, without charge, as many copies of each Pre-Pricing Prospectus as reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the Act. The Company will ~~give~~ furnish to the Underwriters, without charge, during the period when a prospectus relating to the Shares is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Act, such number of copies of the Prospectus (as amended or supplemented) as the Underwriters may reasonably request. 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 XXXXX, except to the extent permitted by Regulation S-T; (e) to take promptly from time to time such actions as the Representatives ~~notice~~ may reasonably request to qualify the Shares for offering and sale under the securities or Blue Sky laws of ~~its intention to make any~~ such ~~filing pursuant to the Exchange Act~~ jurisdictions (domestic or ~~Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish~~ foreign) as the Representatives ~~with copies of any~~ may designate and to continue such ~~documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object~~ qualifications in ~~writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives~~effect, and ~~shall file~~ to comply with such ~~Final Term Sheet~~ laws, for so long as ~~an “Issuer Free Writing Prospectus” prior~~ required to permit the ~~close~~ offer and sale of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close Shares in ~~The City of New York)~~such jurisdictions; provided that the Company and its subsidiaries shall ~~furnish~~ not be obligated to (i) qualify as foreign corporations in any jurisdiction in which they are not so qualified, (ii) to file a general consent to service of process in any jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject. The parties acknowledge and agree that to the extent that the Shares qualify as Common Stock (as defined under Section 18 of the Act), no such actions shall be required with respect to the qualification of the Shares in any state; (f) to timely file such reports pursuant to the Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Act; (g) to use its reasonable best efforts to list, effect and maintain the listing of the Shares on the NASDAQ; (h) to use its best efforts to assist the Underwriters, if requested by the Underwriters, with any filings with FINRA and obtaining clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters; (i) to file all documents required to be filed with the Commission pursuant to the Act within the time periods required by the Act and Exchange Act during the period when a prospectus relating to the Shares is (or, but for the exception afforded by Rule 172 under the Act, would be) required to be delivered under the Act; (j) it will not make any offer relating to the Shares that would constitute a Permitted Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Permitted Free Writing Prospectuses listed on Schedule B hereto, if any, and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives; unless it obtains the prior written consent of the Representatives and subject to the requirements of the Act and the Exchange Act. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with ~~copies~~ the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of a Permitted Free Writing Prospectus there occurred or occurs an event or development as a result of which such Permitted Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading (other than with respect to statements in or omissions from the Registration Statement (or any amendment thereto), the Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company by the Underwriters expressly for use therein), the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Permitted Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; (k) to apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the caption “Use of proceeds” in the Prospectus; (l) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act; (m) beginning on the date hereof and ending on, and including, the date that is 90 days after the date of the Prospectus Supplement (the “Lock-Up Period”), without the prior written consent of UBS Securities LLC and Xxxxxxxxx LLC, not to (i) issue, 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, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the Commission promulgated thereunder, with respect to, any Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a registration statement under the Act relating to the offer and sale of any ~~such Final Term Sheet a reasonable amount~~ Common Stock or any other securities of ~~time prior~~ the Company that are substantially similar to ~~such proposed filing and will not use~~ Common Stock, or ~~file~~ any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such ~~document~~ transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the registration of the offer and sale of the Shares as contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus, and (C) the issuance of employee stock options not exercisable during the Lock-Up Period pursuant to stock option plans described in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus; (n) to provide you with reasonable advance notice of and opportunity to comment on any press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary, or the offering of the Shares, and to issue no such press release or communications or hold such press conference without your prior consent, which consent shall not be unreasonably withheld, conditioned or delayed; (o) not, at any time at or after the ~~Representatives shall~~ execution of this Agreement, to, directly or indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Prospectus; (p) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably ~~object~~ be expected to cause or result in ~~writing~~the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; and (q) for so long as the Company is subject to the reporting requirements of Section 13(g) or 15(d) of the Exchange Act, to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock.

Appears in 1 contract

Samples: Underwriting Agreement (Celsius Holdings, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Contango Oil & Gas Co)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with ~~the several Underwriters~~each International Underwriter as follows: (a) The ~~Company~~Company will use its best efforts to cause the Registration Statement to become effective and, if the Company elects to rely upon Rule 430A and subject to Section ~~6(b)~~3(b) hereof, will comply with the requirements of Rule ~~430B~~ 430A and will notify the International Representatives ~~immediately, and confirm the notice in writing,~~ immediately (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ Statement, shall have become effective, or any supplement to the ~~Prospectus~~ Prospectuses or any amended ~~Prospectus~~ Prospectuses shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration Statement or ~~the filing of a new registration statement or any amendment~~ amend or supplement ~~to the~~ any Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional ~~information,~~ information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement ~~or such new registration statement~~ or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company will ~~effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make~~ 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 ~~stop~~ such order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will ~~give the Representatives notice of its intention to~~ not at any time file or ~~prepare~~ make any amendment to the Registration ~~Statement or new registration statement relating to the Bonds or any amendment~~Statement, ~~supplement or revision to either any preliminary prospectus~~ (including any ~~prospectus~~ filing under Rule 462(b)), file a Term Sheet or file or make any amendment or supplement (i) if the Company has not elected to rely upon Rule 430(A), to the Prospectuses (including amendments of the documents incorporated by reference into the Prospectuses) or (ii) if the Company has elected to rely upon Rule 430A, to either the prospectuses included in the Original Registration Statement ~~or amendment thereto~~ at the time it ~~became effective)~~ becomes effective or to the ~~Prospectus, whether~~ Prospectuses (including amendments of the documents incorporated by reference into the Prospectuses or to the Prospectuses pursuant to ~~the Securities Act~~Item 12 and Rule 412), ~~the Exchange Act~~ of which you shall not have previously been advised and furnished a copy, or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which you or counsel for the Representatives shall reasonably object in writing. The Company will give the Representatives notice of its intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives International Underwriters shall reasonably object in writing. (c) The Company has furnished or will furnish to you and counsel for the International Underwriters, without charge, as many copies (including at least 1

Appears in 1 contract

Samples: International Purchase Agreement (Borg Warner Automotive Inc)

Certain Covenants of the Company. The Company covenants and agrees with the several ~~Underwriters~~Underwriters and the Forward Counterparties as follows: (a) ~~The Company, subject~~ Subject to Section ~~6(b~~5(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives and the Forward Counterparties immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Securities shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement and/or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the ~~Bonds~~Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the ~~Bonds~~ Securities within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).; (b) ~~The Company will~~ To give the Representatives and the Forward Counterparties notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Securities or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives and the Forward Counterparties with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or the Forward Counterparties shall reasonably object in writing. The Company will give the Representatives and the Forward Counterparties notice of its intention to make any such filing pursuant to the Exchange Act or the Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives and the Forward Counterparties with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file ~~or use~~ any such document to which the Representatives ~~shall reasonably object in writing. The Company will prepare a final term sheet (~~or the “Final Term Sheet”) reflecting the final terms of the Bonds, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives Forward Counterparties shall reasonably object in writing. (c) To furnish to each Underwriter and each Forward Counterparty, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as such party may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives and the Forward Counterparties a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives or the Forward Counterparties reasonably object in writing. (e) To use its best efforts to qualify the Securities and to assist in the qualification of the Securities by the Underwriters or on the Underwriters’ behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate in the United States and Canada, to continue such qualification in effect so long as required for the distribution of the Securities and to reimburse the Underwriters for any expenses (including filing fees and fees and disbursements of counsel) paid by the Underwriters or on the Underwriters’ behalf to qualify the Securities for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Securities, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) To promptly deliver to the Representatives and the Forward Counterparties a true and correct copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as the Representatives and the Forward Counterparties may reasonably request; (g) If at any time prior to the completion of the sale of the Securities by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act, the Company promptly (i) will notify the Representatives and the Forward Counterparties of any such event; (ii) subject to the requirements of paragraph (b) of this Section 5, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters and the Forward Counterparties without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement (i) that is necessary in connection with such a delivery of a prospectus more than nine months after the date of this Agreement or (ii) that relates solely to the activities of any Underwriter or Forward Counterparty shall be borne by the Underwriter or the Forward Counterparty or the dealer or dealers requiring the same; and provided further that the Representatives shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by the Representatives retains any unsold Securities and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Securities has been completed when they are advised by the Representatives that no Underwriter or such dealer retains any Securities. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Securities) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and the Forward Counterparties and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; (h) The Company will, as soon as practicable, make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Act; (i) The Company will pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 5(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters and the Forward Counterparties, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Securities to the Underwriters at the place designated in Section 3 hereof, any fees and expenses relating to the eligibility and issuance of the Securities in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Securities, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Securities; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 5(g) above) any amendment or supplement thereto, to the Underwriters and the Forward Counterparties; (iii) the Company’s costs and expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations 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 Company’s portion of the costs of any aircraft chartered in connection with the road show; and (iv) all fees and expenses in connection with listing the Securities on the New York Stock Exchange; (j) The Company hereby agrees that, without the prior written consent of the Representatives, on behalf of the Underwriters, and the Forward Counterparties, it will not, during the period ending 90 days after the date of the final prospectus supplement included in the Prospectus (the “Lock-Up Period”), directly or indirectly, (i) register, offer, issue, 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 any shares of Common Stock (the “Lock-Up Securities”) or any securities convertible into or exercisable or exchangeable for Lock-Up Securities, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Lock-Up Securities, (iii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (iv) file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action, whether any such transaction described in clause (i), (ii) or (iii) above is to be settled by delivery of Lock-Up Securities or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder and Common Stock issued pursuant to the Forward Agreement and Additional Forward Agreements (if any), (B) the issuance by the Company of shares of Common Stock pursuant to, or the grant of options under the Company’s existing stock option, employee benefit or dividend reinvestment plans (as described in the General Disclosure Package and the Prospectus), or the filing of a registration statement with the Commission relating to the offering of any shares of common stock issued or reserved for issuance under such plans, or (C) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the repurchase of shares of Common Stock, provided that such plan does not provide for the repurchase of Common Stock during the Lock-Up Period. If, however, (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the materials news or material event, as applicable, unless the Representatives and the Forward Counterparties waive, in writing, such extension; and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives and the Forward Counterparties (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 1 contract

Samples: Underwriting Agreement (PPL Corp)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with the ~~several Underwriters~~Underwriters as follows: (a) The ~~Company~~Company shall use its best efforts to cause the Registration Statement and any amendments thereto, ~~subject~~ if not effective at the time of execution of this Agreement, to ~~Section 6(b)~~become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Company will ~~comply~~ prepare and file in accordance with Rule 430A and Rule 424(b) copies of the ~~requirements of~~ Prospectus or, if required by Rule ~~430B~~ 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing. (b) The Company shall notify ~~the Representatives~~ you immediately, and confirm ~~the~~ such notice in writing, : (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds shall~~ Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus ~~shall have~~ has been filed, ; (ii) of the receipt of any comments or requests from the ~~Commission~~Commission relating in any way to the Registration Statement, any Preliminary Prospectus and the Prospectus; (iii) of any request by of the Commission ~~for any amendment~~ to amend or supplement the Registration ~~Statement~~ Statement, any Preliminary Prospectus or the ~~filing of a new registration statement or any amendment or supplement to the~~ Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional information, ; and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration ~~Statement or such new registration statement or of any order~~ Statement, preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus or the Prospectus, or ~~of the suspension of~~ suspending the qualification of any of the ~~Bonds~~ Shares for offering or sale in any ~~jurisdiction,~~ jurisdiction or the institution or threat of ~~the initiation or threatening~~ institution of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company ~~will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable effort~~ shall use its best efforts to prevent the issuance of any such stop order ~~and,~~ or of any other such order and if any ~~stop~~ such order is issued, to ~~obtain~~ cause such order to be withdrawn or lifted as soon as possible. (c) The Company shall furnish to the ~~lifting thereof at~~ Underwriters, from time to time without charge, as soon as available, as many copies as the ~~earliest possible moment~~Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto. (d) During the time when a prospectus is required to be delivered under the 1933 Act, the Company shall 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 Shares as contemplated herein and in the Prospectus. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to not file ~~or prepare~~ any amendment to the Registration Statement and shall not make any amendment or ~~new registration statement relating~~ supplement to the ~~Bonds~~ Preliminary Prospectus or ~~any amendment~~to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriters shall reasonably object. If it is necessary, ~~supplement or revision to either any preliminary prospectus (including any prospectus included~~ in the ~~Original~~ Company's reasonable opinion or in the reasonable opinion of the Company's counsel, to amend or supplement the Registration Statement or ~~amendment thereto at~~ the ~~time it became effective)~~ Prospectus in connection with the distribution of the Shares, the Company shall forthwith amend or to supplement the Registration Statement or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, by preparing and ~~will~~ filing with the Commission (provided the Underwriters or counsel for the Underwriters does not ~~file~~ reasonably object), and furnishing to you such number of copies as you may reasonably request of an amendment or ~~use any such document to which~~ amendments of, or a supplement or supplements to, the ~~Representatives shall reasonably object in writing. The Company will give~~ Registration Statement or the ~~Representatives notice of its intention to make any such filing pursuant to~~ Prospectus, as the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet case may be (~~the “Final Term Sheet”) reflecting the final terms of the Bonds,~~ in form and substance reasonably satisfactory to you and counsel for the ~~Representatives~~Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and ~~shall file~~ furnishing to you, such ~~Final Term Sheet~~ number of copies as you may reasonably request of an ~~“Issuer Free Writing Prospectus” prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday~~amendment or amendments of, ~~a Sunday~~ or a ~~legal holiday~~ supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a ~~day on~~ material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which ~~banking institutions~~ they were made, not misleading. (e) The Company shall cooperate with you and counsel for the Underwriters in order to qualify the Shares for offering and sale under the securities or ~~trust companies are authorized or obligated by law to close~~ blue sky laws, if required, of such jurisdictions as you may reasonably request and shall continue such qualifications in ~~The City~~ effect so long as may be advisable for distribution of ~~New York)~~the Shares; ~~provided~~ provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Company shall file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above. The Company will notify you immediately of, and confirm in writing, the suspension of qualification of the Shares or threat thereof in any jurisdiction. (f) The Company shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the ~~Representatives~~ Effective Date, a consolidated earnings statement of the Company in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158. (g) The Company shall use the net proceeds from the sale of the Shares to be sold by the Company hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds." (h) For five years from the Effective Date, the Company shall furnish to the Representative copies of all reports and communications (financial or otherwise) furnished by the Company to the holders of the Shares as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or The Nasdaq Stock Market or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Company as the Representative may reasonably request, other than such documents, reports and information for which the Company has the legal obligation not to reveal to the Representative. (i) For a period of 90 days from the Effective Date, the Company shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Shares (other than pursuant to this Agreement) or any securities of the Company that are substantially similar to the Shares, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into, exercisable or exchangeable for, or are the voting equivalent of, the Shares or that represent the right to receive any such beneficial interest or substantially similar securities, without your prior written consent. (j) The Company shall use its best efforts to obtain approval for the inclusion of the Shares on The Nasdaq National Market, or in lieu thereof on a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representative. (k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Shares under the 1933 Act or relating to any ~~such Final Term Sheet a reasonable amount~~ documents incorporated by reference into the Registration Statement or the Prospectus. (l) Subsequent to the date of ~~time prior to such proposed filing~~ this Agreement and ~~will not use or file any such document to~~ through the date which is the later of (i) the day following the date on which the ~~Representatives~~ Underwriters' option to purchase the Option Shares shall ~~reasonably object~~ expire or (ii) the day following the Option Closing Date with respect to any Option Shares that the Underwriters shall elect to purchase, except as described in ~~writing.~~or contemplated by the Prospectus, neither the Company nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Company or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action

Appears in 1 contract

Samples: Underwriting Agreement (Mercantile Bank Corp)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ with the ~~several Underwriters~~Underwriters as follows: (a) The ~~Company~~Company shall cause the Registration Statement and any amendments thereto, ~~subject~~ if not effective at the time of execution of this Agreement, to ~~Section 6(b)~~become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Company will ~~comply~~ prepare and file in accordance with Rule 430A and Rule 424(b) copies of the ~~requirements of~~ Prospectus or, if required by Rule ~~430B~~ 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing. (b) The Company shall notify the ~~Representatives~~ Representative immediately, and confirm ~~the~~ such notice in writing, : (i) when the Registration Statement, or any post-effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds shall~~ Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus ~~shall have~~ has been filed, ; (ii) of the receipt of any comments or requests from the ~~Commission, (iii) of~~ Commission relating in any ~~request by the Commission for any amendment~~ way to the Registration ~~Statement or the filing of a new registration statement or~~ Statement, any ~~amendment or supplement to~~ Preliminary Prospectus, the Prospectus or any ~~document incorporated by reference therein~~ amendments or ~~otherwise deemed~~ supplements to ~~be a part thereof~~ any of the aforementioned, and of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, ; and (iviii) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration ~~Statement or such new registration statement or of any order~~ Statement, 16 preventing or suspending the use of any ~~preliminary prospectus~~Preliminary Prospectus or the Prospectus, or ~~of the suspension of~~ suspending the qualification of any of the ~~Bonds~~ Designated Shares for offering or sale in any ~~jurisdiction,~~ jurisdiction or the institution or threat of ~~the initiation or threatening~~ institution of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bondspurposes. The Company ~~will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company will make every reasonable effort~~ shall use its best efforts to prevent the issuance of any such stop order ~~and,~~ or of any other such order and if any ~~stop~~ such order is issued, to ~~obtain~~ cause such order to be withdrawn or lifted as soon as possible. (c) The Company shall furnish to the ~~lifting thereof at~~ Underwriters, from time to time without charge, as soon as available, as many copies as the ~~earliest possible moment~~Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto. (d) During the time when a prospectus is required to be delivered under the 1933 Act, the Company shall comply 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 Designated Shares as contemplated herein and in the Prospectus. The Company shall ~~pay the required Commission filing fees relating~~ not file any amendment to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment registration statement as originally filed or to the Registration Statement ~~or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will give the Representatives notice of its intention to~~ and shall not file ~~or prepare~~ any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which the Representative shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which the Representative or counsel for the Underwriters shall reasonably object. If it is necessary, in the Representative's reasonable opinion or in the reasonable opinion of counsel to the Underwriters, to amend or supplement the Registration Statement or ~~new registration statement relating to~~ the ~~Bonds~~ Prospectus in connection with the distribution of the Designated Shares, the Company shall forthwith amend or ~~any amendment,~~ supplement ~~or revision to either any preliminary prospectus (including any prospectus included in~~ the ~~Original~~ Registration Statement or ~~amendment thereto at the time it became effective) or to~~ the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, by preparing and ~~will~~ filing with the Commission, and furnishing to the Representative such number of copies as the Representative may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance satisfactory to the Representative and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the second sentence of this subsection (d), forthwith at its cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to the Representative, such number of copies as the Representative may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to the Representative and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (e) The Company shall cooperate with the Representative and counsel for the Underwriters in order to qualify the Designated Shares for offering and sale under the securities or blue sky laws of such jurisdictions in the United States as the Representative may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Shares; PROVIDED, HOWEVER, that the Company shall not be required to qualify to do business as a foreign corporation or file ~~or use~~ a general consent to service of process in any jurisdiction in connection with the foregoing. The Company shall file such ~~document to~~ statements and reports as may be required by the laws of each jurisdiction in which the ~~Representatives shall reasonably object in writing~~Designated Shares have been qualified as above. The Company will ~~give~~ notify the ~~Representatives notice~~ Representative immediately of, and confirm in writing, the suspension of ~~its intention to make~~ qualification of the Designated Shares or threat thereof in any jurisdiction. (f) The Company will deliver against payment of the purchase price the certificates for the Designated Shares and registered in such ~~filing pursuant to~~ names and denominations as the ~~Exchange Act or Exchange Act Regulations from the Applicable Time~~ Representative shall have requested at least two full business days prior to the Closing Date and, if applicable, the Option Closing Date and ~~will furnish~~ shall be made available, at the ~~Representatives with copies~~ request of ~~any such documents a reasonable amount of time~~ the Representative, for inspection at least 24 hours prior to such ~~proposed filing~~ Closing Date and ~~will~~ Option Closing Date. (g) The Company shall make generally available to its security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to the Representative as soon as practicable, but in any event not ~~file~~ later than 16 months after the Effective Date, a consolidated earnings statement of the Company in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158. (h) The Company shall use the net proceeds from the sale of the Designated Shares in the manner specified in the Prospectus under the caption "Use of Proceeds." (i) For five years from the Effective Date, the Company shall furnish to the Representative copies of all reports and communications (financial or ~~use~~ otherwise) furnished by the Company to the holders of the Designated Shares as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission and other than reports and financial statements available to the public through XXXXX) or with any national securities exchange or the Nasdaq National Market or other self-regulatory organization and such ~~document to~~ other documents, reports and information concerning the business and financial conditions of the Company as the Representative may reasonably request, other than such documents, reports and information for which the ~~Representatives~~ Company has the legal obligation not to reveal to the Representative. (j) For a period of 90 days from the Effective Date, the Company shall ~~reasonably object~~ not, without the Representative's prior written consent, directly or indirectly offer, sell, contract to sell or otherwise dispose of any shares of the Company's equity securities, any securities convertible or exchangeable for such equity securities or any other rights to acquire such equity securities, other than (A) Designated Shares issued and sold to the Underwriters pursuant to this Agreement, (B) Common Stock issued upon exercises of employee stock options outstanding on the date hereof, (C) grants of options or other rights to purchase Common Stock and issuances of shares of Common Stock under employee benefit plans and other compensatory programs in ~~writing~~existence on the date hereof and registrations thereof on Form S-8, and (D) Common Stock (or options under employee benefit plans to purchase Common stock) issued as consideration in any bona fide merger or other business combination transaction. The Company will ~~prepare a final term sheet (~~use its commercially reasonable efforts to cause its directors and Xxxxx X. Xxxxx, Xx., Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx to deliver to the ~~“Final Term Sheet”) reflecting~~ Underwriters on or before the ~~final terms~~ date of ~~the Bonds~~this Agreement, an agreement satisfactory in form and substance ~~reasonably satisfactory~~ to the ~~Representatives~~Representative and counsel for the Underwriters whereby each such person agrees, for a period of 90 days from the Effective Date, not to, directly or indirectly, offer, sell, contract to sell or otherwise dispose of any shares of the Company's equity securities or any other rights to acquire such equity securities without the prior written consent of the Representative, other than (W) sales of Common Stock issued upon exercise of employee stock options outstanding on the date hereof in amounts sufficient to pay the exercise price of exercised options, (X) transfers as a bona fide gift or gifts, provided that prior to any such transfer the donee or donees thereof agree in writing to be bound by the restrictions set forth in such agreement, (Y) transfers to any trust for the direct or indirect benefit of such directors or executive officers or the immediate family of 18 such directors or executive officers, provided that prior to any such transfer the trustee of the trust agrees in writing to be bound by the restrictions set forth in such agreement, and provided further that any such transfer shall ~~file~~ not involve a disposition for value, and (Z) transfers occurring by operation of law, such ~~Final Term Sheet~~ as rules of descent and distribution, statutes governing the effects of a merger or a qualified domestic order, provided that prior to any such transfer the transferee executes an ~~“Issuer Free Writing~~ agreement stating that the transferee is receiving and holding the Common Stock shares subject to the provisions of such agreement. (k) The Company shall use its commercially reasonable efforts to cause the Designated Shares to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted. (l) Except as contemplated in the Prospectus” , subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Shares shall expire or (ii) the day following the Option Closing Date with respect to any Option Shares that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Company nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Company or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Company and the Subsidiaries on a consolidated basis. (m) Except as described in the Prospectus, the Company shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representative, purchase, the Company's Common Stock, except in compliance with applicable law and except for any purchases of shares of Common Stock pursuant to a publicly announced stock buy-back program. (n) The Company shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with the sale or resale of the Designated Shares in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Company is not aware of any such action taken or to be taken by any affiliate of the Company. (o) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Company will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, the Subsidiaries or the offering of the Designated Shares as to which the Representative shall not previously have been advised in writing and provided a copy a reasonable time prior to the ~~close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday~~ proposed issuance or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing holding thereof and ~~will not use or file any such document~~ to which the ~~Representatives~~ Representative or counsel for the Underwriters shall reasonably ~~object in writing~~object. (p) The Company shall comply with all registration, filing and reporting requirements of the 1934 Act and the 1934 Act Regulations for so long as the Prospectus is required to be delivered.

Appears in 1 contract

Samples: Underwriting Agreement (Mainsource Financial Group)

Certain Covenants of the Company. The Company ~~covenants and agrees with the several Underwriters~~agrees: (a) The Company, subject to ~~Section 6(b)~~Sections 3(b) and 3(c) hereof, will comply with the requirements of Rule ~~430B~~ 430B, and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or any new registration statement relating to the ~~Bonds~~ Shares shall become ~~effective,~~ effective or any amendment or supplement to the ~~Prospectus or any amended~~ Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or ~~the filing of a new registration statement or~~ any amendment or supplement to the ~~Prospectus or~~ Prospectus, including any ~~document incorporated by reference therein or otherwise deemed to be a part thereof~~ Incorporated Documents, or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or ~~such new registration statement~~ any post-effective amendment thereto or any notice of objection to the use of the Registration Statement or any post-effective amendment thereto or of the issuance of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus or any ~~preliminary prospectus~~amendment or supplement thereto, or of the suspension of the qualification of ~~the Bonds~~ any Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the ~~Securities~~ Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the ~~Securities~~ Act in connection with ~~the offering~~ any offer or sale of ~~the Bonds~~Shares. The Company will effect ~~the~~ all filings required under Rule 424(b), ) and Rule 430B in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any ~~stop~~ stop, prevention or suspension order and, if any ~~stop~~ such order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Bonds within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) The Company will comply with the Act and the Exchange Act so as to permit the completion of sales of Shares as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel to the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include any 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 (iii) amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus, as the case may be, including, without limitation, the filing of any Incorporated Documents, in order to comply with the requirements of the Act or the Exchange Act, the Company will promptly (A) give the Underwriters written notice of such event or condition, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Underwriters with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement and use its commercially reasonable efforts to have any amendment to the Registration Statement declared effective by the Commission as soon as possible; provided, however, that the Company shall not file or use any such amendment or supplement to which the Representatives shall object, which, in the case of any Incorporated Document, shall not be unreasonably withheld. (c) The Company will give the Representatives written notice of its intention to file or ~~prepare~~ use any amendment to the Registration Statement or ~~new registration statement relating~~ any amendment or supplement to the ~~Bonds~~ Disclosure Package or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the ~~Securities~~ Act, the Exchange Act or otherwise, ~~and the Company~~ will furnish the ~~Representatives~~ Underwriters with copies of any such ~~documents~~ document a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall ~~reasonably object~~ object, which, in ~~writing~~the case of any Incorporated Documents shall not be unreasonably withheld. (d) The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and Incorporated Documents) and signed copies of all consents and certificates of experts. The signed copies of the Registration Statement and each amendment thereto furnished to the Representatives and counsel for the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. (e) The Company will ~~give~~ furnish to each Underwriter, without charge, during the ~~Representatives notice~~ period in which a prospectus is (or, but for the exception afforded by Rule 172 of ~~its intention~~ the Act (“Rule 172”), would be) required by the Act to ~~make~~ be delivered in connection with any offer or sale of Shares, such ~~filing~~ number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished in accordance with this Section will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T. (f) The Company, during the period in which a prospectus is (or, but for the exception afforded by Rule 172, would be) required by the Act to be delivered in connection with any offer or sale of Shares, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods prescribed by, and meeting the requirements of, the Exchange Act. Additionally, the Company shall report the use of the net proceeds from the sale of any Shares as may be required under the Act, including, if applicable, Rule 463 of the Act. (g) The Company will use its commercially reasonable efforts, in cooperation with the Underwriters, to qualify the Shares for offering and sale under the applicable securities laws of such states and non-U.S. jurisdictions as the Representatives may, from time to time, designate and to maintain such qualifications in effect so long as required to complete the sale of the Shares contemplated by this Agreement; 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. (h) The Company will timely file such reports pursuant to the Exchange Act ~~Regulations~~ as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Act. (i) The Company will use the net proceeds received by it from the ~~Applicable Time~~ sale of the Shares pursuant to this Agreement in the manner specified in the Registration Statement, the Disclosure Package and the Prospectus under “Use of Proceeds.” (j) The Company will use its commercially reasonable efforts to effect and maintain the listing of the Shares on, and satisfy the requirements of, the NYSE MKT. (k) The Company will not, without the prior written consent of the Representatives, within 90 days after the date of this Agreement, (i) issue, 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, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the Commission promulgated thereunder, with respect to, any Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a registration statement under the Act relating to the ~~Closing Date~~ offer and ~~will furnish the Representatives with copies~~ sale of any Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Common Stock or any other securities of the Company that are substantially similar to Common Stock, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such ~~documents~~ transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction specified in clause (i), (ii) or (iii). The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a ~~reasonable amount~~ security outstanding on the date hereof and referred to in the Registration Statement, the Disclosure Package and the Prospectus, (C) any shares of ~~time~~ Common Stock issued or options to purchase Common Stock granted pursuant to employee benefit plans of the Company (as they exist on the date hereof) referred to in the Registration Statement, the Disclosure Package and the Prospectus, (D) any shares of Common Stock issued pursuant to non-employee director stock plans or dividend reinvestment plans (as they exist on the date hereof) referred to in the Registration Statement, the Disclosure Package and the Prospectus, (E) the issuance or sale of shares of Common Stock or the execution of any agreement to issue shares of Common Stock directly to the seller as part of the purchase price in connection with the acquisition of stock or assets of another business, by merger or otherwise; provided that the Company shall cause each recipient of such shares to execute and deliver to you, on or prior to such ~~proposed filing and~~ issuance, a “lock-up” agreement, substantially in the form of Exhibit C hereto. (l) The Company agrees that, unless it obtains the prior written consent of the Representatives, it will not ~~file~~ make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or ~~use any such document~~ that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to ~~which~~ be filed by the ~~Representatives shall reasonably object in writing~~Company with the Commission or retained by the Company under Rule 433. The Company represents that it has treated or agrees that it will ~~prepare~~ treat each such free writing prospectus consented to by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus any event shall occur or condition shall exist as a ~~final term sheet~~ result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (m) The Company agrees that it will not, directly or indirectly, any action that is designed, or might reasonably be expected, to cause or result in, or any action that constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any Shares or a violation of Regulation M under the Exchange Act. (n) If, immediately prior to the third anniversary of the initial effective date of the Registration Statement (the “~~Final Term Sheet~~Renewal Deadline”), this Agreement is still in effect or any Shares purchased by any Underwriter remain unsold, the Company will, prior to the Renewal Deadline, (i) ~~reflecting~~ promptly notify the ~~final terms of~~ Underwriters and (ii) promptly file, if it is eligible to do so, a new automatic shelf registration statement relating to the ~~Bonds~~Shares, in form and substance reasonably satisfactory to the ~~Representatives~~Underwriters. If, ~~and shall~~ at the time the Company intends to file such ~~Final Term Sheet as an “Issuer Free Writing Prospectus”~~ a new automatic shelf registration statement, it is not eligible to do so, the Company will, prior to the ~~close of business two Business Days~~ Renewal Deadline, (i) promptly notify the Underwriters, (ii) promptly file a new shelf registration statement on the proper form relating to the Shares, in form and substance reasonably satisfactory to the Underwriters, (iii) use its commercially reasonable efforts to cause such new shelf registration statement to be declared effective within 60 days after the ~~date hereof~~ Renewal Deadline and (iv) promptly notify the Underwriters of such effectiveness. The Company will take all other action necessary or appropriate to permit the offer and sale of the Shares to continue as contemplated in the expired Registration Statement. References herein to the “~~Business Day~~Registration Statement” shall ~~mean any day other than a Saturday~~include such new automatic shelf registration statement or such new shelf registration statement, ~~a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that~~ as the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writingcase may be.

Appears in 1 contract

Samples: Underwriting Agreement (Contango Oil & Gas Co)

Certain Covenants of the Company. The Company covenants ~~and agrees~~ -------------------------------- with the ~~several Underwriters~~Underwriter as follows: (a) The ~~Company~~Company will use its best efforts to cause the Registration Statement to become effective and, if the Company elects to rely upon Rule 430A and subject to Section ~~6(b~~3(b), will comply with the requirements of Rule ~~430B~~ 430A and will notify ~~the Representatives immediately, and confirm the notice in writing~~you promptly, (i) when the Registration Statement, or any ~~post-~~post- effective amendment to the Registration ~~Statement or new registration statement relating to the Bonds~~ 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, (iii) of any request by the Commission ~~for any amendment~~ to amend the Registration ~~Statement or the filing of a new registration statement or any amendment~~ Statement, to amend or supplement ~~to the~~ any Prospectus ~~or any document incorporated by reference therein or otherwise deemed to be a part thereof~~ or for additional ~~information,~~ information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement ~~or such new registration statement~~ or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Shares for offering or sale in any jurisdiction, or of the ~~initiation~~ institution or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Bonds. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8))purposes. The Company will 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 ~~stop~~ such order is issued, to obtain the lifting thereof at the earliest possible moment. ~~The~~ If the Company ~~shall pay~~ elects to rely on Rule 434 under the ~~required Commission filing fees relating~~ 1933 Act Regulations, the Company will use a term sheet that complies with the requirements of Rule 434 under the 1933 Act Regulations. If the Company elects not to rely on Rule 434, the ~~Bonds within~~ Company will provide the ~~time required by Rule 456(b)(1)(i)~~ Underwriter with copies of the ~~Securities Act Regulations without regard to~~ Prospectus, in such number as the ~~proviso therein~~ Underwriter may reasonably request, and ~~otherwise in accordance~~ file or transmit for filing with ~~Rules 456(b) and 457(r) of~~ the ~~Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table~~ Commission such Prospectus in accordance with Rule ~~456(b)(1)(ii~~424(b) ~~either~~ of the 1933 Act Regulations by the close of business in New York on the business day immediately succeeding the date of the Price Determination Agreement. If the Company elects to rely on Rule 434 of the 1933 Act Regulations, the Company will provide the Underwriter with copies of the term sheet and the remainder of the Prospectus, in such number as the Underwriter may reasonably request, and file or transmit for filing with the Commission a ~~post-effective amendment to~~ 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 or the business day immediately succeeding the date of the Price Determination Agreement. If the Company uses Rule 434, the Prospectus will not be "materially different," as such term is used in Rule 434, from the prospectus included in the Registration Statement ~~or on~~ at the ~~cover page of a prospectus filed pursuant to Rule 424(b))~~time it becomes effective. (b) The Company will ~~give the Representatives notice of its intention to~~ not at any time file or ~~prepare~~ make any amendment to the Registration Statement ~~or new registration statement relating to the Bonds or any amendment, supplement or revision to either any preliminary prospectus~~ (including any filing under Rule 462(b)), file a Term Sheet or file or make any amendment or supplement (i) if the Company has not elected to rely upon Rule 430A, to the Prospectus or (ii) if the Company has elected to rely upon Rule 430A, to the prospectus included in the Original Registration Statement ~~or amendment thereto~~ at the time it ~~became effective)~~ becomes effective or to the Prospectus, of which you shall not have previously been advised and furnished a copy or to which you or Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx as counsel for the Underwriter shall have reasonably objected. (c) The Company has furnished or will furnish to you and your counsel, without charge, one signed copy of the Registration Statement as originally filed and of all amendments thereto (including exhibits filed therewith), whether filed before or after the Registration Statement becomes effective, and copies of all exhibits and documents filed therewith, and signed copies of all accountants consents and certificates of experts, if any, and has furnished or will furnish to you one conformed copy of the Registration Statement as originally filed and each amendment thereto. If applicable, the copies of the Registration Statement and each amendment thereto furnished to the Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the ~~Securities Act~~extent permitted by Regulation S-T. (d) The Company will deliver to the Underwriter, without charge, from time to time until the ~~Exchange Act or otherwise~~later of the effective date of the Original Registration Statement and any Rule 462(b) Registration Statement (or, if the Company has elected to rely upon Rule 430A, until the time the Price Determination Agreement is executed and delivered), as many copies of each preliminary prospectus as such Underwriter may reasonably request, and the Company ~~will furnish~~ hereby consents to the ~~Representatives with~~ use of such copies ~~of any such documents a reasonable amount of time prior to such proposed filing or use, as~~ for purposes permitted by the ~~case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing~~1933 Act. The Company will ~~give~~ deliver to the ~~Representatives notice~~ 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 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 ~~intention~~ ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations") so as to permit the completion of the distribution of the Shares as contemplated in this 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 Shares any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriter, to amend the Registration Statement or amend or supplement any 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 such counsel, at any such ~~filing pursuant~~ time to amend the ~~Exchange~~ Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or ~~Exchange~~ the 1933 Act ~~Regulations~~ Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), 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 Shares for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than one year from the ~~Applicable Time~~ later of the effective date of the Original Registration Statement and any Rule 462(b) Registration Statement; provided, however, that neither the -------- ------- Company nor any Subsidiary shall be obligated to ~~the Closing Date and will furnish the Representatives with copies~~ file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any ~~such documents a reasonable amount~~ jurisdiction in which it is not so qualified or to subject itself to taxation in respect of ~~time prior to such proposed filing and will~~ doing business in any jurisdiction in which it is not ~~file or use any such document to which the Representatives shall reasonably object in writing~~otherwise so subject. The Company will ~~prepare a final term sheet~~ file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided. (g) The Company will timely file such reports pursuant to the ~~“Final Term Sheet”~~1934 Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) ~~reflecting the final terms~~ of the ~~Bonds~~1933 Act. (h) For a period of 90 days from the date hereof, ~~in form~~ the Company will not, without the prior written consent of Xxxxxxx Xxxxx, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any shares of Common Stock or securities convertible into or exchangeable or exercisable for Common Stock, other than (i) any shares of Common Stock sold by the Company upon the exercise of any option outstanding at the Closing Time granted under the stock option plans of the Company existing at the Closing Time and ~~substance reasonably satisfactory~~ (ii) issuances by the Company of employee stock options pursuant to the ~~Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior~~ Company's employee stock option plans pursuant to the ~~close of business two Business Days after~~ terms thereof as in effect on the date hereof and the number of shares of Common Stock covered thereby. (~~“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day~~ i) The Company will use its best efforts to maintain the listing of the Common Stock on ~~which banking institutions or trust companies are authorized or obligated by law to close in The City of~~ the New ~~York); provided that~~ York Stock Exchange. (j) If the Company ~~shall~~ has elected to rely upon Rule 430A, it will take such steps as it deems necessary to ascertain promptly whether the forms of prospectus transmitted for filing under Rule 424(b) were received for filing by the Commission and, in the event that they were not, it will promptly file such prospectus. (k) If the Company has elected to rely on Rule 434, it will comply with the requirements of Rule 434, and the Prospectus will not be "materially different," as such term is used in Rule 434, from the prospectus included in the Registration Statement at the time it becomes effective. (l) If the Company has elected to rely upon Rule 462(b), the Company will file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act Regulations by the time confirmations are sent or given, as specified by Rule 462(b)(2). (m) For a period of five years after the Closing Time, the Company will furnish ~~the Representatives with~~ to you copies of ~~any~~ all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such ~~Final Term Sheet a reasonable amount of time prior~~ other similar forms as may be designated by the Commission, and such other documents, reports and information relating to ~~such proposed filing~~ the Company's business or finances as shall be furnished by the Company to its stockholders generally. (n) The Company has complied, and will ~~not use~~ comply, with all of the provisions of Florida H.B. 1771, as codified in sec. 517.075 Florida Statutes, 1987, as amended, and all regulations promulgated thereunder relating to issuers or their affiliates doing business with the government of Cuba or with any person or affiliate located in Cuba. (o) The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file ~~any such document~~ all documents required to ~~which~~ be filed with the ~~Representatives shall reasonably object in writing~~Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.

Appears in 1 contract

Samples: Purchase Agreement (Waters Corp /De/)

Certain Covenants of the Company. The Company covenants and agrees with the several ~~Underwriters~~Underwriters as follows: (a) ~~The Company, subject~~ Subject to Section 6(b), ~~will~~ to comply with the requirements of Rule 430B and ~~will~~ to notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Securities shall 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, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement and/or any notice objecting to its use or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the ~~Bonds~~ Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the ~~Bonds~~Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). 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. The Company shall pay the required Commission filing fees relating to the ~~Bonds~~ Securities within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)). (b) ~~The Company will~~ To give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the ~~Bonds~~ Securities or any amendment, supplement or revision to either any preliminary prospectus (including any prospectus included in the Original Registration Statement or amendment thereto at the time it became effective) or to the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will give the Representatives notice of ~~its~~ their intention to make any such filing pursuant to the Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Representatives shall reasonably object in writing. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the ~~Bonds~~Securities, in form and substance reasonably satisfactory to the Representatives, and shall file such Final Term Sheet as an “Issuer Free Writing ~~Prospectus”~~ Prospectus prior to the close of business two Business Days after the date hereof (“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in The City of New York); provided that the Company shall furnish the Representatives with copies of any 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 Representatives shall reasonably object in writing; (c) To furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the Securities Act, as many copies of the Prospectus and any amendments and supplements thereto as each Underwriter may reasonably request. (d) That before amending and supplementing the preliminary prospectus or the Prospectus, it will furnish to the Representatives a copy of each such proposed amendment or supplement and that it will not use any such proposed amendment or supplement to which the Representatives reasonably object in writing. (e) To use its best efforts to qualify the Securities and to assist in the qualification of the Securities by you or on your behalf for offer and sale under the securities or “blue sky” laws of such jurisdictions as you may designate in the United States and Canada, to continue such qualification in effect so long as required for the distribution of the Securities and to reimburse you for any expenses (including filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the Securities for offer and sale, to continue such qualification, to determine its eligibility for investment and to print any preliminary or supplemental “blue sky” survey or legal investment memorandum relating thereto; provided that Company shall not be required to qualify as a foreign corporation in any State, to consent to service of process in any State other than with respect to claims arising out of the offering or sale of the Securities, or to meet any other requirement in connection with this paragraph (e) deemed by the Company to be unduly burdensome; (f) To promptly deliver to you a true and correct copy of the Registration Statement as originally filed and of all amendments thereto heretofore or hereafter filed, including conformed copies of all exhibits except those incorporated by reference, and such number of conformed copies of the Registration Statement (but excluding the exhibits), each related preliminary prospectus, the Prospectus, and any amendments and supplements thereto, as you may reasonably request; (g) If at any time prior to the completion of the sale of the Securities by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Securities Act, the Company promptly (i) will notify the Representatives of any such event; (ii) subject to the requirements of paragraph (b) of this Section 6, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Prospectus to the several Underwriters without charge in such quantities as they may reasonably request; provided that the expense of preparing and filing any such amendment or supplement (i) that is necessary in connection with such a delivery of a prospectus more than nine months after the date of this Agreement or (ii) that relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that you shall, upon inquiry by the Company, advise the Company whether or not any Underwriter or dealer which shall have been selected by you retains any unsold Securities and, for the purposes of this subsection (g), the Company shall be entitled to assume that the distribution of the Securities has been completed when they are advised by you that no Underwriter or such dealer retains any Securities. If at any time following issuance of an Issuer Free Writing Prospectus, there occurs an event or development as a result of which such Issuer Free Writing Prospectus would conflict with the information contained in the Registration Statement (or any other registration statement related to the Securities) or the Statutory Prospectus or any preliminary prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at their own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; (h) The Company will, as soon as practicable, make generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the “effective date of the registration statement” within the meaning of Rule 158 under the Securities Act which will satisfy the provisions of Section 11(a) of the Act; (i) The Company will pay or bear (i) all expenses in connection with the matters herein required to be performed by the Company, including all expenses (except as provided in Section 6(g) above) in connection with the preparation and filing of the Registration Statement, the General Disclosure Package and the Prospectus, and any amendment or supplement thereto, and the furnishing of copies thereof to the Underwriters, and all audits, statements or reports in connection therewith, and all expenses in connection with the issue and delivery of the Securities to the Underwriters at the place designated in Section 5 hereof, any fees and expenses relating to the eligibility and issuance of the Securities in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Securities, all federal and state taxes (if any) payable (not including any transfer taxes) upon the original issue of the Securities; (ii) all expenses in connection with the printing, reproduction and delivery of this Agreement and the printing, reproduction and delivery of any preliminary prospectus and each Prospectus, and (except as provided in Section 6(g) above) any amendment or supplement thereto, to the Underwriters; (iii) the Company’s costs and expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations 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 Issuers’ portion of the costs of any aircraft chartered in connection with the road show; and (iv) all fees and expenses in connection with listing the Securities on the New York Stock Exchange; (j) The Company hereby agrees that, without the prior written consent of Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated and Credit Suisse Securities (USA) LLC, on behalf of the Underwriters, it will not, during the period ending 90 days after the date of the final prospectus supplement included in the Prospectus (the “Lock-Up Period”), directly or indirectly, (i) register, offer, issue, 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 any shares of Common Stock (the “Lock-Up Securities”) or any securities convertible into or exercisable or exchangeable for Lock-Up Securities, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Lock-Up Securities, (iii) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (iv) file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action, whether any such transaction described in clause (i), (ii) or (iii) above is to be settled by delivery of Lock-Up Securities or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the “Securities” or “Purchase Contracts” (as such terms are defined in the Underwriting Agreement referred to immediately below) to be issued in the transactions contemplated by that certain Underwriting Agreement, dated the date hereof, by and among the Company, PPL Capital Funding, Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Credit Suisse Securities (USA), LLC, as the representatives of the several underwriters named therein, relating to the offer and sale of up to 17,250,000 equity units of the Company, (B) the issuance by the Company of shares of Common Stock pursuant to, or the grant of options under the Company’s existing stock option, employee benefit or dividend reinvestment plans (as described in the General Disclosure Package and the Prospectus), or the filing of a registration statement with the Commission relating to the offering of any shares of common stock issued or reserved for issuance under such plans, or (C) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the repurchase of shares of Common Stock, provided that such plan does not provide for the repurchase of Common Stock during the Lock-Up Period. If, however, (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the materials news or material event, as applicable, unless Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated and Credit Suisse Securities (USA) LLC waive, in writing, such extension; and (k) The Company represents and agrees that, unless it obtains the prior consent of the Representatives (such consent not to be unreasonably withheld), it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 of the Securities Act Regulations, required to be filed with the Commission. The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping in accordance with the Securities Act Regulations.

Appears in 1 contract

Samples: Underwriting Agreement (PPL Corp)

Appears in 1 contract

Samples: Underwriting Agreement (PPL Electric Utilities Corp)

Common use of Certain Covenants of the Company Clause in Contracts