Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as follows: (a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law. (b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market. (c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto. (d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof. (e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units. (f) To furnish or make available to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request. (g) To furnish or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website. (h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or the Prospectus (i) so that such Registration Statement, Permitted Free Writing Prospectus 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, in the light of the circumstances under which they were made or then prevailing, not misleading or (ii) in order to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to comply with such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable. (i) To timely file such reports pursuant to the Exchange Act in order to generally make available to its security holders an earnings statement (in a form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following the “effective date” (as defined in Rule 158) of the Registration Statement. (j) To apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus under the caption “Use of Proceeds.” (k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act. (l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (A) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act), the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents and to dealers (including costs of mailing and shipment), (B) the registration, issue and delivery of the Units, (C) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to the Agents in connection therewith) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Representative, (D) the listing of the Units on the NYSE and any registration thereof under the Exchange Act, (E) any filing for review of the public offering of the Units by FINRA, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (G) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement. (m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder. (n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to in the Prospectus, (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or securities convertible into or exchangeable or exercisable for Units in connection with acquisitions of oil or natural gas assets or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth in the applicable Terms Agreement. (o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act. (p) In the case of any Units that are not listed on the NYSE, the Partnership will use its best efforts to effect the listing of the Units on such exchange as and when required by this Agreement. (q) That it consents to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement.
Appears in 2 contracts
Samples: Distribution Agreement (Atlas Resource Partners, L.P.), Distribution Agreement (Atlas Resource Partners, L.P.)
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so to furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale under the securities or blue sky laws of such states as the Underwriters may designate and to maintain such qualifications in effect as long as required for the delivery distribution of the Units, provided that none of the TEPPCO Entities shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise the Underwriters of the receipt by the TEPPCO Entities of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) to make available to the Underwriters in New York City, without charge, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Partnership shall have made any amendments or supplements thereto after the Effective Date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus is required (whether physically or through compliance with Rule 172 under within the nine-month period referred to in Section 10(a)(3) of the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using the Partnership will prepare promptly upon request such amendment or filing any Permitted Free Writing Prospectus and before amending or supplementing amendments to the Registration Statement or and such prospectuses as may be necessary to permit compliance with the Prospectus requirements of Section 10(a)(3) of the Securities Act.
(c) to advise the Underwriters promptly and (if requested by you) to confirm such advice in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), writing (i) to furnish when any post-effective amendment to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, Registration Statement becomes effective and (ii) that if Rule 430A under the Partnership shall not use or file any such Permitted Free Writing Securities Act is used, when the Prospectus or file any such proposed amendment or supplement to which is filed with the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement Commission pursuant to Rule 424(b) under the Securities Act (and within which the time periods required Partnership agrees to file in a timely manner under such Rules).
(d) to advise the Underwriters promptly, confirming such advice in writing, of any request by Rule 424(b) and Rules 430Athe Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, 430B or 430C under of notice of institution of proceedings for or the Securities Act)entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to file advise the Underwriters promptly of any Permitted Free Writing proposal to amend or supplement the Registration Statement or Prospectus to the extent required including by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or filing any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated documents that would be incorporated therein by the Representative; and, at the Representative’s requestreference, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations Underwriters with a draft of such exchange proposed amendment for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or marketsupplement to which the Underwriters shall object in writing.
(ce) To timely to file promptly all reports and any definitive proxy or information statements statement required to be filed by the Partnership or TE Products with the Commission pursuant in order to Sections 13(a), 13(c), 14 or 15(d) of comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise promptly notify the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws Underwriters of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Unitsfiling.
(f) To furnish if necessary or make available appropriate, to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with file a registration statement pursuant to Rule 172 462(b) under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To to furnish or otherwise make available to the Representative during Underwriters and, upon request, to each of the Term other Underwriters for a period of three years from the date of this Agreement the following documents, provided such documents are not otherwise publicly available via XXXXX: (i) copies of any reports or other communications which the Partnership shall send to the holders of any class of its stockholders limited partnership interests or debt securities or shall from time to time publish or publicly disseminate and disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Partnership is listed, and to furnish to the Representative from time to time during the Term (iv) such other information as the Representative Underwriters may reasonably request regarding the Partnership TEPPCO Entities or its Subsidiariestheir subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet websitebecome available.
(h) If at to advise the Underwriters promptly of the happening of any event known to the Partnership or its subsidiaries within the time when during which a prospectus relating to the Units is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of under the Securities Act or otherwise), which could require the making of any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or change in the Prospectus (i) then being used so that such Registration Statement, Permitted Free Writing the Prospectus or the Prospectus, as the case may be, will would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading or (iimisleading, and, during such time, subject to 4(d) in order hereof, to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with furnish, at the Commission Partnership's expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission or change and to comply with furnish to the Underwriters a copy of such requirements, and, in the case of an proposed amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have supplement before filing any such amendment declared or become effective as soon as practicablesupplement with the Commission.
(i) To timely file such reports pursuant to make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, and to deliver to the Exchange Act in order to generally make available to its security holders Underwriters, an earnings statement of the Partnership (in a form complying with which will satisfy the provisions of Section 11(a) of the Securities Act and Act, including Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following Rules and Regulations) for a period of twelve months beginning after the “effective date” Effective Date of the Registration Statement (as defined in Rule 158158(c) of the Registration StatementSecurities Act) as soon as is reasonably practicable after the termination of such twelve-month period.
(j) To to furnish to the Underwriters, upon request and without charge, two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all financial statements, schedules and exhibits thereto and documents incorporated by reference therein), which are certified by an officer of the General Partner to be true and correct, and sufficient conformed copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters.
(k) to furnish to the Underwriters as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the TEPPCO Entities and their subsidiaries which have been read by the independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof.
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “"Use of Proceeds.”
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases " in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act---------------- Prospectus.
(lm) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters except as set forth under Section 5 hereof and (iii), (iv) and (vi) below) in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act)Statement, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issuance and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, an Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof), and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on the NYSE any securities exchange and any registration thereof under the Exchange Act, (Evi) any fees payable to investment rating agencies with respect to the Units, (vii) any filing for review of the public offering of the Units by FINRAthe NASD, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (Gviii) the performance of the Partnership’s 's other obligations hereunder; hereunder and (Hix) the fees costs and disbursements expenses of counsel the TEPPCO Entities relating to the Representative in an amount not to exceed (a) $100,000 investor presentations on any "road show" undertaken in connection with the negotiation marketing of the offering of the Units, including, without limitation, expenses associated with the production of road show slides and execution graphics, fees and expenses of this Agreement (which shall include all matters required to be completed any consultants engaged in connection with the execution of this Agreement, including road show presentations with the preparation and filing prior approval of the Prospectus Supplement) Partnership, travel and (b) $15,000 in connection with each review lodging expenses of diligence materials the representatives and officers of the TEPPCO Entities and any such consultants, and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for cost of any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material aircraft chartered in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunderroad show.
(n) During each to furnish to the Underwriters, before filing with the Commission subsequent to the Effective Date of the Registration Statement and during the period commencing on referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the date Exchange Act.
(o) to comply with all the provisions of each Transaction Notice and ending at any undertakings contained in the close of business on the Settlement Date for the related Agency TransactionRegistration Statement.
(p) not to sell, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (andoffer or agree to sell, in any eventcontract to sell, at least four (4) business days) before it offers or contracts to sell or exchangehypothecate, sellspledge, exchanges, grants grant any option to sell or otherwise disposes of dispose of, directly or indirectly (or enter into any Units transaction which is designed to, or securities convertible into or exchangeable for Unitsmight reasonably be expected to, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to result in the Prospectusdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise)), (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Common Units or securities convertible into or exchangeable or exercisable for Common Units in connection with acquisitions or warrants or other rights to purchase Common Units or any other securities of oil the Partnership that are substantially similar to Units, or natural gas assets file or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent cause to eliminate fractional securities. Any lock-up provisions relating to be declared effective a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 registration statement under the Securities Act.
(p) In Act relating to the case offer and sale of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or other rights to purchase Units or any other securities of the Partnership that are not listed on substantially similar to Common Units or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the NYSEmeaning of Section 16 of the Exchange Act, the Partnership will use its best efforts or publicly announce an intention to effect any such transaction for a period of ninety (90) days after the listing date hereof (the "Lock-Up Period"), without the prior written consent of UBS Securities LLC, except for (i) the registration of the Common Units on such exchange as and when required by the sales to the Underwriters pursuant to this Agreement, (ii) issuances of Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement and the Prospectus, and (iii) the issuance of employee options not exercisable during the Lock-Up Period pursuant to option plans described in the Registration Statement and the Prospectus.
(q) That it consents not, at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales cause or result in, which will constitute, stabilization of the price of the Common Units occur pursuant to this Agreementfacilitate the sale or resale of any of the Units.
(r) to timely file any financial statements required by Rule 3-05(b)(2) of Regulation S-X.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so to furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale under the securities or blue sky laws of such states as the Underwriters may designate and to maintain such qualifications in effect as long as required for the delivery distribution of the Units, provided that none of the TEPPCO Entities shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise the Underwriters of the receipt by the TEPPCO Entities of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) to make available to the Underwriters in New York City, without charge, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Partnership shall have made any amendments or supplements thereto after the Effective Date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus is required (whether physically or through compliance with Rule 172 under within the nine-month period referred to in Section 10(a)(3) of the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using the Partnership will prepare promptly upon request such amendment or filing any Permitted Free Writing Prospectus and before amending or supplementing amendments to the Registration Statement or and such prospectuses as may be necessary to permit compliance with the Prospectus requirements of Section 10(a)(3) of the Securities Act.
(c) to advise the Underwriters promptly and (if requested by you) to confirm such advice in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), writing (i) to furnish when any post-effective amendment to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, Registration Statement becomes effective and (ii) that if Rule 430A under the Partnership shall not use or file any such Permitted Free Writing Securities Act is used, when the Prospectus or file any such proposed amendment or supplement to which is filed with the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement Commission pursuant to Rule 424(b) under the Securities Act (and within which the time periods required Partnership agrees to file in a timely manner under such Rules).
(d) to advise the Underwriters promptly, confirming such advice in writing, of any request by Rule 424(b) and Rules 430Athe Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, 430B or 430C under of notice of institution of proceedings for or the Securities Act)entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to file advise the Underwriters promptly of any Permitted Free Writing proposal to amend or supplement the Registration Statement or Prospectus to the extent required including by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or filing any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated documents that would be incorporated therein by the Representative; and, at the Representative’s requestreference, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations Underwriters with a draft of such exchange proposed amendment in advance of such filing and to file no such amendment or marketsupplement to which the Underwriters shall object in writing.
(ce) To timely to file promptly all reports and any definitive proxy or information statements statement required to be filed by the Partnership or TE Products with the Commission pursuant in order to Sections 13(a), 13(c), 14 or 15(d) of comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise promptly notify the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws Underwriters of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Unitsfiling.
(f) To furnish if necessary or make available appropriate, to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with file a registration statement pursuant to Rule 172 462(b) under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To to furnish or otherwise make available to the Representative during Underwriters and, upon request, to each of the Term other Underwriters for a period of three years from the date of this Agreement the following documents, provided such documents are not otherwise publicly available via EDGAR: (i) copies of any reports or other communications which the Partnership Xxxxxership shall send to the holders of any class of its stockholders limited partnership interests or debt securities or shall from time to time publish or publicly disseminate and disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Partnership is listed, and to furnish to the Representative from time to time during the Term (iv) such other information as the Representative Underwriters may reasonably request regarding the Partnership TEPPCO Entities or its Subsidiariestheir subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet websitebecome available.
(h) If at to advise the Underwriters promptly of the happening of any event known to the Partnership or its subsidiaries within the time when during which a prospectus Prospectus relating to the Units is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of under the Securities Act or otherwise)which, in the judgment of the Partnership, would require the making of any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or change in the Prospectus (i) then being used, or in the information incorporated therein by reference, so that such Registration Statement, Permitted Free Writing the Prospectus or the Prospectus, as the case may be, will would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading or (ii) in order misleading, and, during such time, to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with furnish, at the Commission Partnership's expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission or change and to comply with furnish to the Underwriters a copy of such requirements, and, in the case of an proposed amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have supplement before filing any such amendment declared or become effective as soon as practicablesupplement with the Commission.
(i) To timely file such reports pursuant to make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, and to deliver to the Exchange Act in order to generally make available to its security holders Underwriters, an earnings statement of the Partnership (in a form complying with which will satisfy the provisions of Section 11(a) of the Securities Act and Act, including Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following Rules and Regulations) for a period of twelve months beginning after the “effective date” Effective Date of the Registration Statement (as defined in Rule 158158(c) of the Registration StatementSecurities Act) as soon as is reasonably practicable after the termination of such twelve-month period.
(j) To to furnish to the Underwriters, upon request and without charge, two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all financial statements, schedules and exhibits thereto and documents incorporated by reference therein), which are certified by an officer of the General Partner to be true and correct, and sufficient conformed copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters.
(k) to furnish to the Underwriters as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the TEPPCO Entities and their subsidiaries which have been read by the independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof.
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “"Use of Proceeds.”
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases " in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange ActProspectus.
(lm) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters except as set forth under Section 5 hereof and (iii), (iv) and (vi) below) in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act)Statement, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issuance and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, an Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof), and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on the NYSE any securities exchange and any registration thereof under the Exchange Act, (Evi) any fees payable to investment rating agencies with respect to the Units, (vii) any filing for review of the public offering of the Units by FINRAthe NASD, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (Gviii) the performance of the Partnership’s 's other obligations hereunder; hereunder and (Hix) the fees costs and disbursements expenses of counsel the TEPPCO Entities relating to the Representative in an amount not to exceed (a) $100,000 investor presentations on any "road show" undertaken in connection with the negotiation marketing of the offering of the Units, including, without limitation, expenses associated with the production of road show slides and execution graphics, fees and expenses of this Agreement (which shall include all matters required to be completed any consultants engaged in connection with the execution of this Agreement, including road show presentations with the preparation and filing prior approval of the Prospectus Supplement) Partnership, travel and (b) $15,000 in connection with each review lodging expenses of diligence materials the representatives and officers of the TEPPCO Entities and any such consultants, and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for cost of any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material aircraft chartered in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunderroad show.
(n) During each to furnish to the Underwriters, before filing with the Commission subsequent to the Effective Date of the Registration Statement and during the period commencing on referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the date Exchange Act.
(o) to comply with all the provisions of each Transaction Notice and ending at any undertakings contained in the close of business on the Settlement Date for the related Agency TransactionRegistration Statement.
(p) not to sell, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (andoffer or agree to sell, in any eventcontract to sell, at least four (4) business days) before it offers or contracts to sell or exchangehypothecate, sellspledge, exchanges, grants grant any option to sell or otherwise disposes of dispose of, directly or indirectly (or enter into any Units transaction which is designed to, or securities convertible into or exchangeable for Unitsmight reasonably be expected to, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to result in the Prospectusdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise)), (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Common Units or securities convertible into or exchangeable or exercisable for Common Units in connection with acquisitions or warrants or other rights to purchase Common Units or any other securities of oil the Partnership that are substantially similar to Units, or natural gas assets file or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent cause to eliminate fractional securities. Any lock-up provisions relating to be declared effective a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 registration statement under the Securities Act.
(p) In Act relating to the case offer and sale of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or other rights to purchase Units or any other securities of the Partnership that are not listed on substantially similar to Common Units or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the NYSEmeaning of Section 16 of the Exchange Act, the Partnership will use its best efforts or publicly announce an intention to effect any such transaction for a period of 90 days after the listing date hereof (the "Lock-Up Period"), without the prior written consent of Salomon Smith Barney Inc., except for (i) the registration of the Units on such exchange as and when required by Cxxxxx Xxxxx xnx xxx sales to the Underwriters pursuant to this Agreement, (ii) issuances of Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement and the Prospectus, and (iii) the issuance of employee options not exercisable during the Lock-Up Period pursuant to option plans described in the Registration Statement and the Prospectus.
(q) That it consents not, at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales cause or result in, which will constitute, stabilization of the price of the Common Units occur pursuant to this Agreementfacilitate the sale or resale of any of the Units.
(r) to timely file any financial statements required by Rule 3-05(b)(2) of Regulation S-X.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and or other jurisdictions (domestic or foreign) as the Representative Representatives may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required the Representatives may request for the distribution of the Units; provided, however, that the Partnership shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation entity or as a dealer in securities to consent to the service of process under the Laws of any such jurisdiction (except service of process with respect to the offering and sale of the Units); and to promptly advise the Representatives of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for offer or sale in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect the initiation or threatening of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.purpose;
(fb) To furnish or to make available to the RepresentativeUnderwriters, without chargeas soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus and (exclusive of Incorporated Documents) or of the Prospectus Supplement and as amended or supplemented (exclusive of Incorporated Documents) if the Partnership shall have made any amendments or supplements thereto after the effective date of the Registration Statement as the Representative reasonably requests Underwriters may request for so long as the delivery of purposes contemplated by the Prospectus Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule), in connection with the sale of the Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Units may be sold, the Partnership will use its reasonable best efforts to cause such post-effective amendment or the Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as reasonably possible; and the Partnership hereby consents to will advise the use of such copies for purposes permitted Representatives promptly and, if requested by the Securities Act. The Partnership Representatives, will furnish confirm such advice in writing, (i) when such post-effective amendment or make available to the RepresentativeRegistration Statement has become effective, without chargeand (ii) if Rule 430A under the Act is used, during the period when the Prospectus is required (or, but for filed with the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers Commission pursuant to Rule 173(d424(b) under the Act (which the Partnership agrees to file in a timely manner in accordance with such Rules);
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) to advise the Representatives promptly, confirming such advice in writing, of any request by the Commission for amendments or otherwise), such number of copies of supplements to the Registration Statement, any Permitted Free Writing Prospectus and the Preliminary Prospectus, the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To furnish or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the Prospectus (i) so that such entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, Permitted Free Writing to use its best efforts to obtain the lifting or removal of such order as soon as possible; other than a Current Report on Form 8-K disclosing the terms of this Agreement and containing exhibits to the Registration Statement, for the period of time covered by Section 4(g), to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Preliminary Prospectus or the Prospectus, and to provide the Representatives and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Representatives shall reasonably object in writing (unless the Partnership is advised by counsel that it is required by Law to make such filing);
(g) subject to Section 4(f) hereof and subsequent to the date of the Prospectus, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Partnership with the Commission in order to comply with the Exchange Act and for so long as the case may bedelivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Units;
(h) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will which event, in the opinion of the Partnership or the Underwriters (upon advice of counsel) would require the making of any change in the Prospectus then being used so that the Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or (ii) in order supplement the Prospectus to cause the Prospectus to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of and, in each case, during such event or condition and of its intention time, subject to file such amendment or supplement and will promptly Section 4(f) hereof, to prepare and file with furnish, at the Commission Partnership’s expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission change or to comply with effect such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.compliance;
(i) To timely file such reports pursuant to the Exchange Act in order to make generally make available to its security holders Unitholders, and to deliver to the Representatives, an earnings statement (in a form complying with which need not be audited) of the Partnership (which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering a period of twelve months beginning after the twelve-month period beginning not later than effective date of the first day Registration Statement (as defined in Rule 158(c) under the Act) (the “Effective Date”) as soon as is reasonably practicable after the Effective Date (it being understood that the Partnership shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Partnership’s fiscal quarter next following year, 455 days after the “effective date” end of the Partnership’s current fiscal quarter);
(as defined in Rule 158j) to furnish or make available to the Representatives upon request a reasonable number of copies of the Registration Statement., as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(jk) To unless otherwise available through XXXXX, if requested by the Representatives, to furnish to the Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Partnership and the Subsidiaries which have been read by the Partnership’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof;
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “Use of Proceeds.”” in the Preliminary Prospectus;
(km) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under Statement, the Securities Act)Basic Prospectus, the Preliminary Prospectus, the Prospectus Supplement, the Prospectus, any each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issue, sale and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws or foreign Laws and the determination of their eligibility for investment under state law as aforesaid or foreign Law (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the reasonable printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on any securities exchange or qualification of the NYSE Units for quotation on the Primary Stock Exchange and any registration thereof under the Exchange Act, (Evi) any filing for review of the public offering of the Units by the FINRA, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters in an amount not to exceed $20,000; (Fvii) the fees and disbursements of counsel any transfer agent or registrar for the Units, (viii) the costs and expenses of the Partnership relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Partnership and any such consultants, and half the cost of any aircraft used by the Partnership’s independent registered public accounting firm; Partnership in connection with the road show, and (Gix) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreementprovided, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated herebyhowever, that the Partnership will shall not be responsible for fees of counsel other than counsel to the Partnership and those fees specifically referred to in this Section 4(m).
(n) 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;
(o) beginning on the date hereof and ending on, and including, the date that is 45 days after the date of the Prospectus Supplement (as extended pursuant to this Section 4(o), the “Lock-Up Period”), without the prior written consent of Xxxxx Fargo, 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for Units in for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a manner in violation of registration statement under the Securities Act; the Partnership will not distribute any offering material in connection with Act relating to the offer and sale of the Units, other than the Registration Statement, the Prospectus any Common Units or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred that are substantially similar to in the Prospectus, (iii) any Common Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such transaction is to be settled by delivery of Common Units 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 Units as contemplated by this Agreement and the sale of the Units to the Underwriters pursuant to this Agreement, (B) issuances of Common Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (C) the issuance of employee unit stock options, phantom units or dividend equivalent rights that are not exercisable or do not vest, as applicable, during the Lock-Up Period pursuant to benefits plans described in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (D) the filing of a registration statement on Form S-8 to register Common Units under benefits plans disclosed in the Registration Statement, the Preliminary Prospectus and the Prospectus, (E) the filing of a universal shelf registration statement on Form S-3 to register Common Units or other Partnership securities, provided that the Partnership shall not issue any Common Units thereunder until expiration of the Lock-Up Period, (F) the issuance of Common Units in a private placement exempt from registration under the Act, provided that the purchaser of such Common Units enters into a Lock-Up Agreement for the remainder of the Lock-Up Period, (G) the pledge of any Common Units or other Partnership securities to secure loans to such persons or entities in connection with acquisitions any financing transaction to which such persons or entities are parties, provided that such Common Units or other Partnership securities may not be sold or disposed of oil or natural gas assets or exploration and production companies or (v) any Units sold in connection with the exercise by the Partnership’s transfer agent to eliminate fractional securities. Any locklender of any remedies as a secured party until the expiration of the Lock-up provisions relating to a Principal Transaction shall be set forth in Up Period, and (H) the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies issuance of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.Common Units upon conversion of any Class B Units or Waiver Units;
(p) In not, at any time at or after the case execution of this Agreement, to, directly or indirectly, offer or sell any Units by means of any Units that are “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 Units, in each case other than the Prospectus and any Permitted Free Writing Prospectus;
(q) not listed on to, and to cause the NYSESubsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Partnership will to facilitate the sale or resale of the Units;
(r) to use its best efforts to effect cause the Units to be listed on the Primary Stock Exchange and to maintain the listing of the Units Common Units, including the Units, on such exchange as and when required by this Agreement.or any other exchange or primary market that is the Partnership’s Primary Stock Exchange;
(qs) That it consents to maintain a transfer agent and, if necessary under the Agents trading in jurisdiction of formation of the Units Partnership, a registrar for the Agents’ own account Common Units; and
(t) to cooperate and furnish such information as may be necessary for any filing for review of the account of its clients at the same time as sales public offering of the Units occur pursuant to this Agreementby FINRA.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so to furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale under the securities or blue sky laws of such states as the Underwriters may designate and to maintain such qualifications in effect as long as required for the delivery distribution of the Units, provided that none of the TEPPCO Entities shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise the Underwriters of the receipt by the TEPPCO Entities of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) to make available to the Underwriters in New York City, without charge, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Partnership shall have made any amendments or supplements thereto after the Effective Date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus is required (whether physically or through compliance with Rule 172 under within the nine-month period referred to in Section 10(a)(3) of the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using the Partnership will prepare promptly upon request such amendment or filing any Permitted Free Writing Prospectus and before amending or supplementing amendments to the Registration Statement or and such prospectuses as may be necessary to permit compliance with the Prospectus requirements of Section 10(a)(3) of the Securities Act.
(c) to advise the Underwriters promptly and (if requested by you) to confirm such advice in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), writing (i) to furnish when any post-effective amendment to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, Registration Statement becomes effective and (ii) that if Rule 430A under the Partnership shall not use or file any such Permitted Free Writing Securities Act is used, when the Prospectus or file any such proposed amendment or supplement to which is filed with the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement Commission pursuant to Rule 424(b) under the Securities Act (and within which the time periods required Partnership agrees to file in a timely manner under such Rules).
(d) to advise the Underwriters promptly, confirming such advice in writing, of any request by Rule 424(b) and Rules 430Athe Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, 430B or 430C under of notice of institution of proceedings for or the Securities Act)entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to file advise the Underwriters promptly of any Permitted Free Writing proposal to amend or supplement the Registration Statement or Prospectus to the extent required including by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or filing any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated documents that would be incorporated therein by the Representative; and, at the Representative’s requestreference, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations Underwriters with a draft of such exchange proposed amendment in advance of such filing and to file no such amendment or marketsupplement to which the Underwriters shall object in writing.
(ce) To timely to file promptly all reports and any definitive proxy or information statements statement required to be filed by the Partnership or TE Products with the Commission pursuant in order to Sections 13(a), 13(c), 14 or 15(d) of comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise promptly notify the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws Underwriters of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Unitsfiling.
(f) To furnish if necessary or make available appropriate, to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with file a registration statement pursuant to Rule 172 462(b) under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To to furnish or otherwise make available to the Representative during Underwriters and, upon request, to each of the Term other Underwriters for a period of three years from the date of this Agreement the following documents, provided such documents are not otherwise publicly available via EDGAR: (i) copies of any reports or other communications which the Partnership Paxxxxxship shall send to the holders of any class of its stockholders limited partnership interests or debt securities or shall from time to time publish or publicly disseminate and disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Partnership is listed, and to furnish to the Representative from time to time during the Term (iv) such other information as the Representative Underwriters may reasonably request regarding the Partnership TEPPCO Entities or its Subsidiariestheir subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet websitebecome available.
(h) If at to advise the Underwriters promptly of the happening of any event known to the Partnership or its subsidiaries within the time when during which a prospectus Prospectus relating to the Units is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of under the Securities Act or otherwise)which, in the judgment of the Partnership, would require the making of any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or change in the Prospectus (i) then being used, or in the information incorporated therein by reference, so that such Registration Statement, Permitted Free Writing the Prospectus or the Prospectus, as the case may be, will would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading or (ii) in order misleading, and, during such time, to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with furnish, at the Commission Partnership's expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission or change and to comply with furnish to the Underwriters a copy of such requirements, and, in the case of an proposed amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have supplement before filing any such amendment declared or become effective as soon as practicablesupplement with the Commission.
(i) To timely file such reports pursuant to make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, and to deliver to the Exchange Act in order to generally make available to its security holders Underwriters, an earnings statement of the Partnership (in a form complying with which will satisfy the provisions of Section 11(a) of the Securities Act and Act, including Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following Rules and Regulations) for a period of twelve months beginning after the “effective date” Effective Date of the Registration Statement (as defined in Rule 158158(c) of the Registration StatementSecurities Act) as soon as is reasonably practicable after the termination of such twelve-month period.
(j) To to furnish to the Underwriters, upon request and without charge, two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all financial statements, schedules and exhibits thereto and documents incorporated by reference therein), which are certified by an officer of the General Partner to be true and correct, and sufficient conformed copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters.
(k) to furnish to the Underwriters as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the TEPPCO Entities and their subsidiaries which have been read by the independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof.
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “"Use of Proceeds.”
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases " in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange ActProspectus.
(lm) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters except as set forth under Section 5 hereof and (iii), (iv) and (vi) below) in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act)Statement, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issuance and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, an Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof), and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on the NYSE any securities exchange and any registration thereof under the Exchange Act, (Evi) any fees payable to investment rating agencies with respect to the Units, (vii) any filing for review of the public offering of the Units by FINRAthe NASD, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (Gviii) the performance of the Partnership’s 's other obligations hereunder; hereunder and (Hix) the fees costs and disbursements expenses of counsel the TEPPCO Entities relating to the Representative in an amount not to exceed (a) $100,000 investor presentations on any "road show" undertaken in connection with the negotiation marketing of the offering of the Units, including, without limitation, expenses associated with the production of road show slides and execution graphics, fees and expenses of this Agreement (which shall include all matters required to be completed any consultants engaged in connection with the execution of this Agreement, including road show presentations with the preparation and filing prior approval of the Prospectus Supplement) Partnership, travel and (b) $15,000 in connection with each review lodging expenses of diligence materials the representatives and officers of the TEPPCO Entities and any such consultants, and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for cost of any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material aircraft chartered in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunderroad show.
(n) During each to furnish to the Underwriters, before filing with the Commission subsequent to the Effective Date of the Registration Statement and during the period commencing on referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the date Exchange Act.
(o) to comply with all the provisions of each Transaction Notice and ending at any undertakings contained in the close of business on the Settlement Date for the related Agency TransactionRegistration Statement.
(p) not to sell, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (andoffer or agree to sell, in any eventcontract to sell, at least four (4) business days) before it offers or contracts to sell or exchangehypothecate, sellspledge, exchanges, grants grant any option to sell or otherwise disposes of dispose of, directly or indirectly (or enter into any Units transaction which is designed to, or securities convertible into or exchangeable for Unitsmight reasonably be expected to, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to result in the Prospectusdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise)), (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Common Units or securities convertible into or exchangeable or exercisable for Common Units in connection with acquisitions or warrants or other rights to purchase Common Units or any other securities of oil the Partnership that are substantially similar to Units, or natural gas assets file or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent cause to eliminate fractional securities. Any lock-up provisions relating to be declared effective a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 registration statement under the Securities Act.
(p) In Act relating to the case offer and sale of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or other rights to purchase Units or any other securities of the Partnership that are not listed on substantially similar to Common Units or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the NYSEmeaning of Section 16 of the Exchange Act, the Partnership will use its best efforts or publicly announce an intention to effect any such transaction for a period of 90 days after the listing date hereof (the "Lock-Up Period"), without the prior written consent of Goldman, Sachs & Co., except for (i) the registration of the Units on such exchange as and when required by Common Uxxxx xxd xxx xales to the Underwriters pursuant to this Agreement, (ii) issuances of Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement and the Prospectus, and (iii) the issuance of employee options not exercisable during the Lock-Up Period pursuant to option plans described in the Registration Statement and the Prospectus.
(q) That it consents not, at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales cause or result in, which will constitute, stabilization of the price of the Common Units occur pursuant to this Agreementfacilitate the sale or resale of any of the Units.
(r) to timely file any financial statements required by Rule 3-05(b)(2) of Regulation S-X.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Sales Agent as follows:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative each Sales Agent a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative either Sales Agent reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative Sales Agents and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative each Sales Agent via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representativeeach Sales Agent; and, at the Representativeany Sales Agent’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representativeeach Sales Agent, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities Units for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and other jurisdictions (domestic or foreign) as the Representative Sales Agents may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.
(f) To furnish or make available to the Representativeeach Sales Agent, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative such Sales Agent reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representativeeach Sales Agent, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative such Sales Agent may reasonably request.
(g) To furnish or make available to the Representative each Sales Agent during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative each Sales Agent from time to time during the Term such other information as the Representative such Sales Agent may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representativesuch Sales Agent, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative any Sales Agent with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or the Prospectus (i) so that such Registration Statement, Permitted Free Writing Prospectus 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, in the light of the circumstances under which they were made or then prevailing, not misleading or (ii) in order to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative Sales Agents of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to comply with such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.
(i) To timely file such reports pursuant to the Exchange Act in order to generally make available to its security holders an earnings statement (in a form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following the “effective date” (as defined in Rule 158) of the Registration Statement.
(j) To apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus under the caption “Use of Proceeds.”
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the RepresentativeSales Agents, to pay all costs, expenses, fees and taxes in connection with (A) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act), the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Sales Agents and to dealers (including costs of mailing and shipment), (B) the registration, issue and delivery of the Units, (C) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to the Sales Agents in connection therewith) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeSales Agents, (D) the listing of the Units on the NYSE and any registration thereof under the Exchange Act, (E) any filing for review of the public offering of the Units by FINRA, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; and (G) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents each Sales Agent shall be responsible for any transfer taxes on resale of Units by themit, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their such Sales Agent’s counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable each Sales Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to in the Prospectus, (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or securities convertible into or exchangeable or exercisable for Units in connection with acquisitions of oil or natural gas assets or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(p) In the case of any Units that are not listed on the NYSE, the Partnership will use its best efforts to effect the listing of the Units on such exchange as and when required by this Agreement.
(q) That it consents to the Agents each Sales Agent’s trading in the Units for the Agents’ such Sales Agent’s own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement.
Appears in 1 contract
Samples: Distribution Agreement (Atlas Resource Partners, L.P.)
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so to furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect as long as required for the delivery distribution of the Units, provided that none of the TEPPCO Entities shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise you of the receipt by the TEPPCO Entities of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) to make available to the Underwriters in New York City, without charge, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Partnership shall have made any amendments or supplements thereto after the Effective Date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus is required (whether physically or through compliance with Rule 172 under within the nine-month period referred to in Section 10(a)(3) of the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using the Partnership will prepare promptly upon request such amendment or filing any Permitted Free Writing Prospectus and before amending or supplementing amendments to the Registration Statement or and such prospectuses as may be necessary to permit compliance with the Prospectus requirements of Section 10(a)(3) of the Securities Act.
(c) to advise you promptly and (if requested by you) to confirm such advice in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), writing (i) to furnish when any post-effective amendment to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, Registration Statement becomes effective and (ii) that if Rule 430A under the Partnership shall not use or file any such Permitted Free Writing Securities Act is used, when the Prospectus or file any such proposed amendment or supplement to which is filed with the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement Commission pursuant to Rule 424(b) under the Securities Act (and within which the time periods required Partnership agrees to file in a timely manner under such Rules).
(d) to advise you promptly, confirming such advice in writing, of any request by Rule 424(b) and Rules 430Athe Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, 430B or 430C under of notice of institution of proceedings for or the Securities Act)entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to file advise you promptly of any Permitted Free Writing proposal to amend or supplement the Registration Statement or Prospectus to the extent required including by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or filing any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated documents that would be incorporated therein by the Representative; and, at the Representative’s requestreference, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations you with a draft of such exchange proposed amendment in advance of such filing and to file no such amendment or marketsupplement to which you shall object in writing.
(ce) To timely to file promptly all reports and any definitive proxy or information statements statement required to be filed by the Partnership or TE Products with the Commission pursuant in order to Sections 13(a), 13(c), 14 or 15(d) of comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws notify you of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Unitsfiling.
(f) To furnish if necessary or make available appropriate, to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with file a registration statement pursuant to Rule 172 462(b) under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To to furnish or otherwise make available to you and, upon request, to each of the Representative during other Underwriters for a period of three years from the Term date of this Agreement the following documents, provided such documents are not otherwise publicly available via EDGAR: (i) copies of any reports or other communications which the Partnership Parxxxxxhip shall send to the holders of any class of its stockholders limited partnership interests or debt securities or shall from time to time publish or publicly disseminate and disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Partnership is listed, and to furnish to the Representative from time to time during the Term (iv) such other information as the Representative you may reasonably request regarding the Partnership TEPPCO Entities or its Subsidiariestheir subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet websitebecome available.
(h) If at to advise the Underwriters promptly of the happening of any event known to the Partnership or its subsidiaries within the time when during which a prospectus Prospectus relating to the Units is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of under the Securities Act or otherwise)which, in the judgment of the Partnership, would require the making of any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or change in the Prospectus (i) then being used, or in the information incorporated therein by reference, so that such Registration Statement, Permitted Free Writing the Prospectus or the Prospectus, as the case may be, will would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading or (ii) in order misleading, and, during such time, to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with furnish, at the Commission Partnership's expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission or change and to comply with furnish to you a copy of such requirements, and, in the case of an proposed amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have supplement before filing any such amendment declared or become effective as soon as practicablesupplement with the Commission.
(i) To timely file such reports pursuant to the Exchange Act in order to make generally make available to holders of its security holders securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, and to deliver to you, an earnings statement of the Partnership (in a form complying with which will satisfy the provisions of Section 11(a) of the Securities Act and Act, including Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following Rules and Regulations) for a period of twelve months beginning after the “effective date” Effective Date of the Registration Statement (as defined in Rule 158158(c) of the Registration StatementSecurities Act) as soon as is reasonably practicable after the termination of such twelve-month period.
(j) To to furnish to you, upon request and without charge, two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all financial statements, schedules and exhibits thereto and documents incorporated by reference therein), which are certified by an officer of the General Partner to be true and correct, and sufficient conformed copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters.
(k) to furnish to you as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the TEPPCO Entities and their subsidiaries which have been read by the independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(b)hereof.
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “"Use of Proceeds.”
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases " in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange ActProspectus.
(lm) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters except as set forth under Section 5 hereof and (iii), (iv) and (vi) below) in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act)Statement, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issuance and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, an Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof), and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on the NYSE any securities exchange and any registration thereof under the Exchange Act, (Evi) any fees payable to investment rating agencies with respect to the Units, (vii) any filing for review of the public offering of the Units by FINRA, the NASD and (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (Gviii) the performance of the Partnership’s 's other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each to furnish to you, before filing with the Commission subsequent to the Effective Date of the Registration Statement and during the period commencing on referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the date Exchange Act.
(o) to comply with all the provisions of each Transaction Notice and ending at any undertakings contained in the close of business on the Settlement Date for the related Agency TransactionRegistration Statement.
(p) not to sell, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (andoffer or agree to sell, in any eventcontract to sell, at least four (4) business days) before it offers or contracts to sell or exchangehypothecate, sellspledge, exchanges, grants grant any option to sell or otherwise disposes of any Units dispose of, directly or securities convertible into or exchangeable for Unitsindirectly, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to in the Prospectus, (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Common Units or securities convertible into or exchangeable or exercisable for Common Units in connection with acquisitions or warrants or other rights to purchase Common Units or any other securities of oil the Partnership that are substantially similar to Units, or natural gas assets file or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent cause to eliminate fractional securities. Any lock-up provisions relating to be declared effective a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 registration statement under the Securities Act.
(p) In Act relating to the case offer and sale of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or other rights to purchase Units or any other securities of the Partnership that are not listed on substantially similar to Common Units for a period of 90 days after the NYSEdate hereof (the "Lock-Up Period"), without the Partnership will use its best efforts to effect prior written consent of UBS Warburg LLC, except for (i) the listing registration of the Common Units on such exchange as and when required by the sales to the Underwriters pursuant to this Agreement, (ii) issuances of Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement and the Prospectus, and (iii) the issuance of employee options not exercisable during the Lock-Up Period pursuant to option plans described in the Registration Statement and the Prospectus.
(q) That it consents not, at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales cause or result in, which will constitute, stabilization of the price of the Common Units occur pursuant to this Agreementfacilitate the sale or resale of any of the Units.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and or other jurisdictions (domestic or foreign) as the Representative you may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required you may request for the distribution of the Units; provided, however, that the Partnership shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation or as a dealer in securities to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Units); and to promptly advise you of the receipt by the Partnership Entities of any notification with respect to the suspension of the qualification of the Units for offer or sale in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect the initiation or threatening of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.purpose;
(fb) To furnish or to make available to the RepresentativeUnderwriters in New York City, without chargeas soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus and (or of the Prospectus Supplement and as amended or supplemented if the Partnership shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Representative reasonably requests Underwriters may request for so long as the delivery of purposes contemplated by the Prospectus Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule), in connection with the sale of the Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Partnership hereby consents Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Units may be sold, to use of its reasonable best efforts to cause such copies for purposes permitted post-effective amendment or such Registration Statement to be filed and become effective, and pay any applicable fees in accordance with the Act, as soon as possible; and advise you promptly and, if requested by you, confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the Securities Act. The Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Partnership will furnish or make available agrees to the Representativefile in a timely manner in accordance with such Rules);
(d) if, without charge, at any time during the period when the Prospectus a prospectus is required (or, but for by the provisions of Rule 172, would be required) Act to be delivered by applicable law (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, the Registration Statement shall cease to meet comply with the requirements of the Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with the Commission a new registration statement under the Act, relating to the Units, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Act and shall be in a form satisfactory to you, (iii) use its reasonable best efforts to cause such new registration statement or post-effective amendment to become effective under the Act as soon as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action necessary or appropriate to permit the public offering and sale of the Units to continue as contemplated in the Prospectus; all references herein to the Registration Statement shall be deemed to include each such new registration statement or post-effective amendment, if any;
(e) to advise you promptly, confirming such advice in writing, of any request of purchasers pursuant by the Commission for amendments or supplements to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and Pre-Pricing Prospectus, the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To furnish or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the Prospectus (i) so that such entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, Permitted Free Writing to use its reasonable best efforts to obtain the lifting or removal of such order as soon as possible; to advise you promptly of any proposal to amend or supplement the Registration Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which you shall reasonably object in writing;
(f) subject to Section 4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Partnership with the Commission in order to comply with the Exchange Act for so long as a prospectus is required by the case may beAct to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units;
(g) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or (ii) in order supplement the Prospectus to cause the Prospectus to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of and, in each case, during such event or condition and of its intention time, subject to file such amendment or supplement and will promptly Section 4(e) hereof, to prepare and file with furnish, at the Commission Partnership’s expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission change or to comply with effect such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.compliance;
(ih) To timely file such reports pursuant to the Exchange Act in order to make generally make available to its security holders holders, and to deliver to you, an earnings statement (in of the Partnership which will satisfy, on a form complying with timely basis, the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act;
(i) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following the “effective date” (as defined in Rule 158) to furnish to you seven copies of the Registration Statement., as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(j) To to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “Use of Proceeds.”” in the Prospectus Supplement;
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Securities Act)Prospectus Supplement, the Prospectus, any each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issue, sale and delivery of the UnitsUnits including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (Ciii) the printing and delivering to the Underwriters of this Agreement, (iv) the qualification of the Units for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on any securities exchange or qualification of the Units for quotation on the NYSE and any registration thereof under the Exchange Act, (Evi) any filing for review of the public offering of the Units by the Financial Industry Regulatory Authority (“FINRA”), including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters, (Fvii) the fees and disbursements of counsel to any transfer agent or registrar for the Units, (viii) the costs and expenses of the Partnership and relating to presentations or meetings undertaken in connection with the marketing of the Partnership’s independent registered public accounting firm; offering and sale of the Units to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the General Partner and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (Gix) the performance of the Partnership’s other obligations hereunder;
(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) without the prior written consent of the Managing Underwriters, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Partnership or any affiliate of the Partnership or any person in privity with the Partnership or any affiliate of the Partnership), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other Common Units or any securities convertible into, or exercisable, or exchangeable for, Common Units; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Agreement, provided, however, that the Partnership may (i) issue and sell the Units pursuant to this Agreement, (ii) issue and sell Common Units pursuant to any employee benefit plan of the Partnership or the General Partner described in the Registration Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the Prospectus, (iii) issue Common Units issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, and (Hiv) issue Common Units as consideration for any merger and acquisition made by the fees Partnership; provided, however, that in the case of any issuance pursuant to this clause (iv), in the case of any merger or acquisition other than the acquisition of all of the outstanding equity of a publicly traded entity, each recipient of any such Common Units shall sign and disbursements deliver an agreement in substantially the form of counsel to the Representative in an amount not to exceed Exhibit A hereto;
(an) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with not, at any time at or after the execution of this Agreement, including to, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the preparation and filing meaning of the Prospectus Supplement) and Act), or use any “prospectus” (b) $15,000 in connection with each review of diligence materials and within the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing meaning of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(mAct) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and or sale of the Units, in each case other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to any employee benefit plans plan of the Partnership referred to or the General Partner described in the Prospectus, Registration Statement (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at excluding the time such Transaction Notice is delivered, (iv) any Units or securities convertible into or exchangeable or exercisable for Units in connection with acquisitions of oil or natural gas assets or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth in the applicable Terms Agreement.exhibits thereto);
(o) To retainnot to, pursuant and to reasonable procedures developed cause the Partnership Entities not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in good faith, copies the stabilization or manipulation of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under price of any security of the Securities Act.Partnership to facilitate the sale or resale of the Units;
(p) In to use its reasonable best efforts to cause the case of any Units that are not to be listed on the NYSE, the Partnership will use its best efforts NYSE and to effect maintain the listing of the Units Common Units, including the Units, on such exchange as and when required by this Agreement.the NYSE; and
(q) That it consents to maintain a transfer agent and, if necessary under the Agents trading in jurisdiction of incorporation of the Units Partnership, a registrar for the Agents’ own account and for the account of its clients at the same time as sales of the Units occur pursuant to this AgreementCommon Units.
Appears in 1 contract
Samples: Underwriting Agreement (Pioneer Southwest Energy Partners L.P.)
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsthe Underwriter:
(a) For to furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect so long as required for the delivery distribution of the Units; provided that the Partnership shall not be required to qualify as a foreign entity or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise you of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriter in Houston, Texas as soon as practicable after the date hereof, and thereafter from time to time to furnish to the Underwriter, as many copies of the Prospectus as the Underwriter may request for the purposes contemplated by the Act; in case the Underwriter is required to deliver a prospectus is required (whether physically or through compliance with Rule 172 under after the Securities nine-month period referred to in Section 10(a)(3) of the Act or any similar rule) in connection with the offering or sale of the Units, before using the Partnership will prepare, at its expense, promptly upon request such amendment or filing any Permitted Free Writing Prospectus and before amending or supplementing amendments to the Registration Statement or and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ic) to furnish to prepare the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative you and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within not later than the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies Commission's close of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed business on the Commission’s Electronic Data Gatheringsecond business day following the execution and delivery of this Agreement, Analysis and Retrieval system or any successor system thereto (collectivelyor, “XXXXX”)) to the Representative via e-mail in “.pdf” format on if applicable, such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected earlier time as may be required by Rule 430A(a)(3) under the rules Act; to make no further amendment or regulations any supplement (other than a Current Report on Form 8-K disclosing the terms of this Agreement) to the Registration Statement or Prospectus prior to the time of purchase which shall be disapproved by you promptly after reasonable notice thereof; provided that you will not unreasonably disapprove any such amendment or supplement;
(d) to advise you promptly, confirming such advice in writing, of any request by the Commission so long as a Prospectus is required to be delivered in connection with this offering for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or of notice so long as a Prospectus is required to be delivered in connection with this offering of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement so long as a Prospectus is required to be delivered in connection with this offering, to use its best efforts to obtain the lifting or removal of such exchange order as soon as possible; to advise you promptly of any proposal made so long as a Prospectus is required to be delivered in connection with this offering to amend or market.supplement the Registration Statement or the Prospectus, including by filing any documents that would be incorporated therein by reference, and to furnish you with drafts of such proposed amendment in advance of such filing and to file no such amendment or supplement to which you shall reasonably object in writing;
(ce) To timely subject to Section 4(d) hereof, to file promptly all reports and any definitive proxy or information statements statement required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of comply with the Exchange Act subsequent to the date hereof and for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units; to provide you with a copy of such reports and statements and other documents to be filed by the Partnership pursuant to Section 13, 14 or 15(d) of the Exchange Act during such period a reasonable amount of time prior to any proposed filing, and during to promptly notify you of such same period filing;
(f) if necessary or appropriate, to advise file a registration statement pursuant to Rule 462(b) under the Representative, promptly after the Partnership receives notice thereof, Act;
(i) to advise you promptly upon receipt of notice from the Commission or any state securities regulator of any action, request, order or proceeding that is being or will be taken or given by it with respect to the offering of the time when any amendment to Units, or the Prospectus and Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed in connection with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of or the issuance by the Commission happening of any stop order or any order preventing or suspending event that would require the use making of any prospectus relating to change in the Units or Prospectus in connection with the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification offering of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of so that the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any would not include an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when under and the date on which they are made, not misleading, (ii) to furnish you with drafts of any proposed amendments or supplements to the Prospectus or Registration Statement that may be necessary as a result of any such Permitted Free Writing Prospectus is delivered to a purchaseraction, not misleading request, order or proceeding or the happening of any such event in advance of such filing and (viiii) of the receipt by the Partnership of any notice of objection of the Commission to file no such amendment or supplement to the use extent disapproved by you promptly after reasonable notice thereof; provided that you will not unreasonably disapprove any such amendment or supplement;
(h) to make generally available to its unitholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement or any post-effective amendment thereto.(as defined in Rule 158(c) of the Act), an earnings statement of the Partnership complying with Section 11(a) of the Act;
(di) In to furnish to its unitholders as soon as practicable after the event end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, unitholders' equity and cash flow of the issuance of any stop order Partnership and the suspension or loss of any qualification Subsidiaries for such fiscal year, accompanied by a copy of the Securities for offering certificate or sale and any loss or suspension report thereon of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.nationally recognized independent certified public accountants);
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.
(f) To furnish or make available to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be requiredj) to be delivered by applicable law (whether furnish to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies you one signed copy of the Registration Statement, any Permitted Free Writing Prospectus as initially filed with the Commission, and the Prospectus of each amendment thereto (including all exhibits thereto and any amendments or supplements to any of the foregoing as the Representative may reasonably request.documents incorporated by reference therein);
(gk) To to furnish or otherwise make available to you promptly upon request for a period of five years from the Representative during date of this Agreement the Term following documents, provided such documents are not otherwise publicly available via XXXXX: (i) copies of any reports or other communications which the Partnership shall send to its stockholders unitholders or shall from time to time publish or publicly disseminate and disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form forms as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Partnership is listed, and to furnish to the Representative from time to time during the Term (iv) such other information as the Representative you may reasonably request regarding the Partnership Partnership, its Subsidiaries or its Subsidiaries, in each case the General Partner;
(l) to furnish to you as soon early as practicable following prior to the date at which such reports, communications, documents or information becomes available or promptly upon the request time of the Representative, as applicable; provided, however, that the Partnership purchase and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any additional time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or the Prospectus (i) so that such Registration Statement, Permitted Free Writing Prospectus or the Prospectuspurchase, 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, in the light of the circumstances under which they were made or then prevailing, not misleading or (ii) in order to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to comply with such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.
(i) To timely file such reports pursuant to the Exchange Act in order to generally make available to its security holders an earnings statement (in a form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering the twelve-month period beginning but not later than the first day two business days prior thereto, a copy of the Partnership’s fiscal quarter next following the “effective date” (as defined in Rule 158) latest available unaudited interim consolidated financial statements, if any, of the Registration Statement.Partnership and the consolidated Subsidiaries which have been read by the Partnership's independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(c) hereof;
(jm) To to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “"Use of Proceeds.”" in the Prospectus;
(kn) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes (other than any fees and disbursements of counsel for the Underwriter except as set forth in (iii) and (iv) below and Section 5 hereof) in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act)Statement, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriter and to dealers (including costs -19- of mailing and shipment), (ii) the registration, issue, sale and delivery of the Units including any transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriter, (iii) the producing, word processing and/or printing of this Agreement, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriter and (except closing documents) to dealers (including costs of mailing and shipment), (B) the registration, issue and delivery of the Units, (Civ) the qualification of the Units for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriter) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriter and to dealers, (Dv) the any listing of the Units on the NYSE and any registration thereof under the Exchange Actsecurities exchange, (Evi) any filing for review of the public offering of the Units by FINRAthe NASD, including the legal fees and filing fees and other disbursements of counsel to the Underwriter, (Fvii) the fees and disbursements of counsel any transfer agent or registrar for the Units, (viii) the costs and expenses of the Partnership relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriter's sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Partnership and any such consultants, and the cost of any aircraft chartered in connection with the Partnership’s independent registered public accounting firm; road show, and (Gix) the performance of the Partnership’s 's other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to in the Prospectus, (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or securities convertible into or exchangeable or exercisable for Units in connection with acquisitions of oil or natural gas assets or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth in the applicable Terms Agreement.;
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(p) In the case of any Units that are not listed on the NYSE, the Partnership will use its best efforts to effect cause the listing Units to be listed on the New York Stock Exchange; and
(p) to maintain a transfer agent and, if necessary under the jurisdiction of formation of the Units on such exchange as and when required by this Agreement.
(q) That it consents to the Agents trading in the Units Partnership, a registrar for the Agents’ own account and for the account of its clients at the same time as sales of the Units occur pursuant to this AgreementUnits.
Appears in 1 contract
Samples: Underwriting Agreement (Gulfterra Energy Partners L P)
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and or other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required the Representative may request for the distribution of the Units; provided, however, that the Partnership shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation entity or as a dealer in securities to consent to the service of process under the Laws of any such jurisdiction (except service of process with respect to the offering and sale of the Units); and to promptly advise the Representative of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for offer or sale in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect the initiation or threatening of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.purpose;
(fb) To furnish or to make available to the RepresentativeUnderwriters, without chargeas soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus and (exclusive of Incorporated Documents) or of the Prospectus Supplement and as amended or supplemented (exclusive of Incorporated Documents) if the Partnership shall have made any amendments or supplements thereto after the effective date of either of the Registration Statements, as applicable, as the Representative reasonably requests Underwriters may request for so long as the delivery of purposes contemplated by the Prospectus Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule), in connection with the sale of the Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to such Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to such Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to either of the Registration Statements, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Units may be sold, the Partnership will use its reasonable best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as reasonably possible; and the Partnership hereby consents to will advise the use of such copies for purposes permitted Representative promptly and, if requested by the Securities Act. The Partnership will furnish or make available to the Representative, without chargewill confirm such advice in writing, during (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the period Act is used, when the Prospectus is required (or, but for filed with the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers Commission pursuant to Rule 173(d424(b) or otherwiseunder the Act (which the Partnership agrees to file in a timely manner in accordance with such Rules);
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) to advise the Representative promptly, confirming such number advice in writing, of copies of any request by the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any Commission for amendments or supplements to any of a Registration Statement, the foregoing as Preliminary Prospectus, the Representative may reasonably request.
(g) To furnish Prospectus or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the Prospectus (i) so that such entry of a stop order, suspending the effectiveness of a Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of a Registration Statement, Permitted Free Writing to use its best efforts to obtain the lifting or removal of such order as soon as possible; other than a Current Report on Form 8-K disclosing the terms of this Agreement and containing exhibits to a Registration Statement, for the period of time covered by Section 5(g), to advise the Representative promptly of any proposal to amend or supplement a Registration Statement, the Preliminary Prospectus or the Prospectus, and to provide the Representative and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Representative shall reasonably object in writing (unless the Partnership is advised by counsel that it is required by Law to make such filing);
(g) subject to Section 5(f) hereof and subsequent to the date of the Prospectus, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Partnership with the Commission in order to comply with the Exchange Act and for so long as the case may bedelivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Units;
(h) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will which event, in the opinion of the Partnership or the Underwriters (upon advice of counsel) would require the making of any change in the Prospectus then being used so that the Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or (ii) in order supplement the Prospectus to cause the Prospectus to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of and, in each case, during such event or condition and of its intention time, subject to file such amendment or supplement and will promptly Section 5(f) hereof, to prepare and file with furnish, at the Commission Partnership’s expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission change or to comply with effect such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.compliance;
(i) To timely file such reports pursuant to the Exchange Act in order to make generally make available to its security holders Unitholders, and to deliver to the Representative, an earnings statement (in a form complying with which need not be audited) of the Partnership (which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering a period of twelve months beginning after the twelve-month period beginning not later than effective date of a Registration Statement (as defined in Rule 158(c) under the first day Act) (the “Effective Date”) as soon as is reasonably practicable after the Effective Date (it being understood that the Partnership shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Partnership’s fiscal quarter next following year, 455 days after the “effective date” (as defined in Rule 158) end of the Registration Statement.Partnership’s current fiscal quarter);
(j) To apply to furnish or make available to the net Representative upon request a reasonable number of copies of the Registration Statements, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(k) unless otherwise available through XXXXX, if requested by the Representative, to furnish to the Representative as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Partnership and the Subsidiaries which have been read by the Partnership’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 8(c) hereof;
(l) the Partnership will not receive any proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus under the caption “Use of Proceeds.”pursuant to this Agreement;
(km) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under Statements, each Basic Prospectus, the Securities Act)Preliminary Prospectus, the Prospectus Supplement, the Prospectus, any each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue sale and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws or foreign Laws and the determination of their eligibility for investment under state law as aforesaid or foreign Law (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the reasonable printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on any securities exchange or qualification of the NYSE Units for quotation on the Primary Stock Exchange and any registration thereof under the Exchange Act, (Evi) any filing for review of the public offering of the Units by the FINRA, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters in an amount not to exceed $20,000; (Fvii) the fees and disbursements of counsel any transfer agent or registrar for the Units, (viii) the costs and expenses of the Partnership relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Partnership and any such consultants, and (except as provided below) half the cost of any aircraft used by the Partnership’s independent registered public accounting firm; Partnership in connection with the road show, and (Gix) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreementprovided, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated herebyhowever, that the Partnership will shall not be responsible for the following: (i) any underwriting fees, discounts or commissions or transfer taxes attributable to the sale of the Units, (ii) out-of-pocket expenses of the Selling Unitholders (or the agents who manage their accounts), (iii) fees of counsel other than counsel to the Partnership and those fees specifically referred to in this Section 5(m) and (iv) travel expenses of the Selling Unitholders (or the agents who manage their accounts).
(n) 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;
(o) beginning on the date hereof and ending on, and including, the date that is 45 days after the date of the Prospectus Supplement (as extended pursuant to this Section 5(o), the “Lock-Up Period”), without the prior written consent of the Representative, 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for Units in for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a manner in violation of registration statement under the Securities Act; the Partnership will not distribute any offering material in connection with Act relating to the offer and sale of the Units, other than the Registration Statement, the Prospectus any Common Units or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred that are substantially similar to in the Prospectus, (iii) any Common Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such transaction is to be settled by delivery of Common Units 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 Units as contemplated by this Agreement and the sale of the Units to the Underwriters pursuant to this Agreement, (B) issuances of Common Units upon the exercise of options or warrants disclosed as outstanding in the applicable Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (C) the issuance of employee unit stock options, phantom units or dividend equivalent rights that are not exercisable or do not vest, as applicable, during the Lock-Up Period pursuant to benefits plans described in the applicable Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (D) the filing of a registration statement on Form S-8 to register Common Units under benefits plans disclosed in the applicable Registration Statement, the Preliminary Prospectus and the Prospectus, (E) the filing of a universal shelf registration statement on Form S-3 to register Common Units or other Partnership securities, provided that the Partnership shall not issue any Common Units thereunder until expiration of the Lock-Up Period, (F) the issuance of Common Units in a private placement exempt from registration under the Act, provided that the purchaser of such Common Units enters into a Lock-Up Agreement for the remainder of the Lock-Up Period, (G) the pledge of any Common Units or other Partnership securities to secure loans to such persons or entities in connection with acquisitions any financing transaction to which such persons or entities are parties, provided that such Common Units or other Partnership securities may not be sold or disposed of oil or natural gas assets or exploration and production companies or (v) any Units sold in connection with the exercise by the Partnership’s transfer agent to eliminate fractional securities. Any locklender of any remedies as a secured party until the expiration of the Lock-up provisions relating to a Principal Transaction shall be set forth in Up Period, and (H) the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies issuance of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.Common Units upon conversion of any Class B Units or Waiver Units;
(p) In not, at any time at or after the case execution of this Agreement, to, directly or indirectly, offer or sell any Units by means of any Units that are “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 Units, in each case other than the Prospectus and any Permitted Free Writing Prospectus;
(q) not listed on to, and to cause the NYSESubsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Partnership will to facilitate the sale or resale of the Units;
(r) to use its best efforts to effect maintain the listing of the Units Common Units, including the Units, on such the New York Stock Exchange or any other exchange as and when required by this Agreement.or primary market that is the Partnership’s Primary Stock Exchange;
(qs) That it consents to maintain a transfer agent and, if necessary under the Agents trading in jurisdiction of formation of the Units Partnership, a registrar for the Agents’ own account Common Units; and
(t) to cooperate and furnish such information as may be necessary for any filing for review of the account of its clients at the same time as sales public offering of the Units occur pursuant to this Agreementby FINRA.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and or other jurisdictions (domestic or foreign) as the Representative Underwriter may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required the Underwriter may request for the distribution of the Units; provided, however, that the Partnership shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation entity or as a dealer in securities to consent to the service of process under the Laws of any such jurisdiction (except service of process with respect to the offering and sale of the Units); and to promptly advise the Underwriter of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for offer or sale in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect the initiation or threatening of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.purpose;
(fb) To furnish or to make available to the RepresentativeUnderwriter, without chargeas soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriter, as many copies of the Prospectus and (exclusive of Incorporated Documents) or of the Prospectus Supplement and as amended or supplemented (exclusive of Incorporated Documents) if the Partnership shall have made any amendments or supplements thereto after the effective date of the Registration Statement as the Representative reasonably requests Underwriter may request for so long as the delivery of purposes contemplated by the Prospectus Act; in case the Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule), in connection with the sale of the Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Units may be sold, the Partnership will use its reasonable best efforts to cause such post-effective amendment or the Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as reasonably possible; and the Partnership hereby consents to will advise the use of such copies for purposes permitted Underwriter promptly and, if requested by the Securities Act. The Partnership Underwriter, will furnish confirm such advice in writing, (i) when such post-effective amendment or make available to the RepresentativeRegistration Statement has become effective, without chargeand (ii) if Rule 430A under the Act is used, during the period when the Prospectus is required (or, but for filed with the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers Commission pursuant to Rule 173(d424(b) under the Act (which the Partnership agrees to file in a timely manner in accordance with such Rules);
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) to advise the Underwriter promptly, confirming such advice in writing, of any request by the Commission for amendments or otherwise), such number of copies of supplements to the Registration Statement, any Permitted Free Writing Prospectus and the Preliminary Prospectus, the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To furnish or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the Prospectus (i) so that such entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of a Registration Statement, Permitted Free Writing to use its best efforts to obtain the lifting or removal of such order as soon as possible; other than a Current Report on Form 8-K disclosing the terms of this Agreement and containing exhibits to the Registration Statement, for the period of time covered by Section 5(g), to advise the Underwriter promptly of any proposal to amend or supplement a Registration Statement, the Preliminary Prospectus or the Prospectus, and to provide the Underwriter and Underwriter’s counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriter shall reasonably object in writing (unless the Partnership is advised by counsel that it is required by Law to make such filing);
(g) subject to Section 5(f) hereof and subsequent to the date of the Prospectus, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Partnership with the Commission in order to comply with the Exchange Act and for so long as the case may bedelivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Units;
(h) to advise the Underwriter promptly of the happening of any event within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will which event, in the opinion of the Partnership or the Underwriter (upon advice of counsel) would require the making of any change in the Prospectus then being used so that the Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading misleading, and to advise the Underwriter promptly if, during such period, it shall become necessary to amend or (ii) in order supplement the Prospectus to cause the Prospectus to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of and, in each case, during such event or condition and of its intention time, subject to file such amendment or supplement and will promptly Section 5(f) hereof, to prepare and file with furnish, at the Commission Partnership’s expense, to the Underwriter promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission change or to comply with effect such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.compliance;
(i) To timely file such reports pursuant to the Exchange Act in order to make generally make available to its security holders Unitholders, and to deliver to the Underwriter, an earnings statement (in a form complying with which need not be audited) of the Partnership (which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering a period of twelve months beginning after the twelve-month period beginning not later than effective date of the first day Registration Statement (as defined in Rule 158(c) under the Act) (the “Effective Date”) as soon as is reasonably practicable after the Effective Date (it being understood that the Partnership shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Partnership’s fiscal quarter next following year, 455 days after the “effective date” end of the Partnership’s current fiscal quarter);
(as defined in Rule 158j) to furnish or make available to the Underwriter upon request a reasonable number of copies of the Registration Statement., as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to the Underwriter;
(jk) To apply unless otherwise available through XXXXX, if requested by the net Underwriter, to furnish to the Underwriter as early as practicable prior to the time of purchase, but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Partnership and the Subsidiaries which have been read by the Partnership’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 8(c) hereof;
(l) the Partnership will not receive any proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus under the caption “Use of Proceeds.”pursuant to this Agreement;
(km) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under Statement, the Securities Act)Basic Prospectus, the Preliminary Prospectus, the Prospectus Supplement, the Prospectus, any each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriter and to dealers (including costs of mailing and shipment), (Bii) the registration, issue sale and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriter and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws or foreign Laws and the determination of their eligibility for investment under state law as aforesaid or foreign Law (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriter) and the reasonable printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriter and to dealers, (Dv) the any listing of the Units on any securities exchange or qualification of the NYSE Units for quotation on the Primary Stock Exchange and any registration thereof under the Exchange Act, (Evi) any filing for review of the public offering of the Units by the FINRA, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriter relating to FINRA matters in an amount not to exceed $20,000; (Fvii) the fees and disbursements of counsel any transfer agent or registrar for the Units, (viii) the costs and expenses of the Partnership relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriter’s sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Partnership and any such consultants, and (except as provided below) half the cost of any aircraft used by the Partnership’s independent registered public accounting firm; Partnership in connection with the road show, and (Gix) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreementprovided, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated herebyhowever, that the Partnership will shall not be responsible for the following: (i) any underwriting fees, discounts or commissions or transfer taxes attributable to the sale of the Units, (ii) out-of-pocket expenses of the Selling Unitholders (or the agents who manage their accounts), (iii) fees of counsel other than counsel to the Partnership and those fees specifically referred to in this Section 5(m) and (iv) travel expenses of the Selling Unitholders (or the agents who manage their accounts).
(n) 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;
(o) beginning on the date hereof and ending on, and including, the date that is 45 days after the date of the Prospectus Supplement (as extended pursuant to this Section 5(o), the “Lock-Up Period”), without the prior written consent of the Underwriter, 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for Units in for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a manner in violation of registration statement under the Securities Act; the Partnership will not distribute any offering material in connection with Act relating to the offer and sale of the Units, other than the Registration Statement, the Prospectus any Common Units or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred that are substantially similar to in the Prospectus, (iii) any Common Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such transaction is to be settled by delivery of Common Units 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 Units as contemplated by this Agreement and the sale of the Units to the Underwriter pursuant to this Agreement, (B) issuances of Common Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (C) the issuance of employee unit stock options, phantom units or dividend equivalent rights that are not exercisable or do not vest, as applicable, during the Lock-Up Period pursuant to benefits plans described in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (D) the filing of a registration statement on Form S-8 to register Common Units under benefits plans disclosed in the Registration Statement, the Preliminary Prospectus and the Prospectus, (E) the filing of a universal shelf registration statement on Form S-3 to register Common Units or other Partnership securities, provided that the Partnership shall not issue any Common Units thereunder until expiration of the Lock-Up Period, (F) the issuance of Common Units in a private placement exempt from registration under the Act, provided that the purchaser of such Common Units enters into a Lock-Up Agreement for the remainder of the Lock-Up Period, (G) the pledge of any Common Units or other Partnership securities to secure loans to such persons or entities in connection with acquisitions any financing transaction to which such persons or entities are parties, provided that such Common Units or other Partnership securities may not be sold or disposed of oil or natural gas assets or exploration and production companies or (v) any Units sold in connection with the exercise by the Partnership’s transfer agent to eliminate fractional securities. Any locklender of any remedies as a secured party until the expiration of the Lock-up provisions relating to a Principal Transaction shall be set forth in Up Period and (H) the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies issuance of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.Common Units upon conversion of any Class B Units or Waiver Units;
(p) In not, at any time at or after the case execution of this Agreement, to, directly or indirectly, offer or sell any Units by means of any Units that are “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 Units, in each case other than the Prospectus and any Permitted Free Writing Prospectus;
(q) not listed on to, and to cause the NYSESubsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Partnership will to facilitate the sale or resale of the Units;
(r) to use its best efforts to effect maintain the listing of the Units Common Units, including the Units, on such the New York Stock Exchange or any other exchange as and when required by this Agreement.or primary market that is the Partnership’s Primary Stock Exchange;
(qs) That it consents to maintain a transfer agent and, if necessary under the Agents trading in jurisdiction of formation of the Units Partnership, a registrar for the Agents’ own account Common Units; and
(t) to cooperate and furnish such information as may be necessary for any filing for review of the account of its clients at the same time as sales public offering of the Units occur pursuant to this Agreementby FINRA.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and or other jurisdictions (domestic or foreign) as the Representative Representatives may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required the Representatives may request for the distribution of the Units; provided, however, that the Partnership shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation entity or as a dealer in securities to consent to the service of process under the Laws of any such jurisdiction (except service of process with respect to the offering and sale of the Units); and to promptly advise the Representatives of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for offer or sale in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect the initiation or threatening of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.purpose;
(fb) To furnish or to make available to the RepresentativeUnderwriters, without chargeas soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus and (exclusive of Incorporated Documents) or of the Prospectus Supplement and as amended or supplemented (exclusive of Incorporated Documents) if the Partnership shall have made any amendments or supplements thereto after the effective date of the Registration Statement as the Representative reasonably requests Underwriters may request for so long as the delivery of purposes contemplated by the Prospectus Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule), in connection with the sale of the Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Units may be sold, the Partnership will use its reasonable best efforts to cause such post-effective amendment or the Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as reasonably possible; and the Partnership hereby consents to will advise the use of such copies for purposes permitted Representatives promptly and, if requested by the Securities Act. The Partnership Representatives, will furnish confirm such advice in writing, (i) when such post-effective amendment or make available to the RepresentativeRegistration Statement has become effective, without chargeand (ii) if Rule 430A under the Act is used, during the period when the Prospectus is required (or, but for filed with the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers Commission pursuant to Rule 173(d424(b) under the Act (which the Partnership agrees to file in a timely manner in accordance with such Rules);
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) to advise the Representatives promptly, confirming such advice in writing, of any request by the Commission for amendments or otherwise), such number of copies of supplements to the Registration Statement, any Permitted Free Writing Prospectus and the Preliminary Prospectus, the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To furnish or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the Prospectus (i) so that such entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, Permitted Free Writing to use its best efforts to obtain the lifting or removal of such order as soon as possible; other than a Current Report on Form 8-K disclosing the terms of this Agreement and containing exhibits to the Registration Statement, for the period of time covered by Section 4(g), to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Preliminary Prospectus or the Prospectus, and to provide the Representatives and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Representatives shall reasonably object in writing (unless the Partnership is advised by counsel that it is required by Law to make such filing);
(g) subject to Section 4(f) hereof and subsequent to the date of the Prospectus, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Partnership with the Commission in order to comply with the Exchange Act and for so long as the case may bedelivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Units;
(h) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will which event, in the opinion of the Partnership or the Underwriters (upon advice of counsel) would require the making of any change in the Prospectus then being used so that the Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or (ii) in order supplement the Prospectus to cause the Prospectus to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of and, in each case, during such event or condition and of its intention time, subject to file such amendment or supplement and will promptly Section 4(f) hereof, to prepare and file with furnish, at the Commission Partnership’s expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission change or to comply with effect such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.compliance;
(i) To timely file such reports pursuant to the Exchange Act in order to make generally make available to its security holders Unitholders, and to deliver to the Representatives, an earnings statement (in a form complying with which need not be audited) of the Partnership (which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering a period of twelve months beginning after the twelve-month period beginning not later than effective date of the first day Registration Statement (as defined in Rule 158(c) under the Act) (the “Effective Date”) as soon as is reasonably practicable after the Effective Date (it being understood that the Partnership shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Partnership’s fiscal quarter next following year, 455 days after the “effective date” end of the Partnership’s current fiscal quarter);
(as defined in Rule 158j) to furnish or make available to the Representatives upon request a reasonable number of copies of the Registration Statement., as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(jk) To unless otherwise available through XXXXX, if requested by the Representatives, to furnish to the Representatives as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Partnership and the Subsidiaries which have been read by the Partnership’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof;
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “Use of Proceeds.”” in the Preliminary Prospectus;
(km) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under Statement, the Securities Act)Basic Prospectus, the Preliminary Prospectus, the Prospectus Supplement, the Prospectus, any each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issue, sale and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws or foreign Laws and the determination of their eligibility for investment under state law as aforesaid or foreign Law (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the reasonable printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on any securities exchange or qualification of the NYSE Units for quotation on the Primary Stock Exchange and any registration thereof under the Exchange Act, (Evi) any filing for review of the public offering of the Units by the FINRA, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters in an amount not to exceed $20,000; (Fvii) the fees and disbursements of counsel any transfer agent or registrar for the Units, (viii) the costs and expenses of the Partnership relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Partnership and any such consultants, and half the cost of any aircraft used by the Partnership’s independent registered public accounting firm; Partnership in connection with the road show, and (Gix) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreementprovided, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated herebyhowever, that the Partnership will shall not be responsible for fees of counsel other than counsel to the Partnership and those fees specifically referred to in this Section 4(m).
(n) 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;
(o) beginning on the date hereof and ending on, and including, the date that is 45 days after the date of the Prospectus Supplement (as extended pursuant to this Section 4(o), the “Lock-Up Period”), without the prior written consent of Xxxxx Fargo, 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for Units in for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a manner in violation of registration statement under the Securities Act; the Partnership will not distribute any offering material in connection with Act relating to the offer and sale of the Units, other than the Registration Statement, the Prospectus any Common Units or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred that are substantially similar to in the Prospectus, (iii) any Common Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such transaction is to be settled by delivery of Common Units 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 Units as contemplated by this Agreement and the sale of the Units to the Underwriters pursuant to this Agreement, (B) issuances of Common Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (C) the issuance of employee unit stock options, phantom units or dividend equivalent rights that are not exercisable or do not vest, as applicable, during the Lock-Up Period pursuant to benefits plans described in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (D) the deemed issuance of Common Units under Section 16 of the Exchange Act upon the cash settlement of phantom units or stock appreciation rights outstanding as of the date of this Agreement, (E) the filing of a registration statement on Form S-8 to register Common Units under benefits plans disclosed in the Registration Statement, the Preliminary Prospectus and the Prospectus, (F) the filing of a universal shelf registration statement on Form S-3 to register Common Units or other Partnership securities, provided that the Partnership shall not issue any Common Units thereunder until expiration of the Lock-Up Period, (G) the issuance of Common Units in a private placement exempt from registration under the Act, provided that the purchaser of such Common Units enters into a Lock-Up Agreement for the remainder of the Lock-Up Period, (H) the pledge of any Common Units or other Partnership securities to secure loans to such persons or entities in connection with acquisitions any financing transaction to which such persons or entities are parties, provided that such Common Units or other Partnership securities may not be sold or disposed of oil or natural gas assets or exploration and production companies or (v) any Units sold in connection with the exercise by the Partnership’s transfer agent to eliminate fractional securities. Any locklender of any remedies as a secured party until the expiration of the Lock-up provisions relating to a Principal Transaction shall be set forth in Up Period, and (I) the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies issuance of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.Common Units upon conversion of any Class B Units or Waiver Units;
(p) In not, at any time at or after the case execution of this Agreement, to, directly or indirectly, offer or sell any Units by means of any Units that are “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 Units, in each case other than the Prospectus and any Permitted Free Writing Prospectus;
(q) not listed on to, and to cause the NYSESubsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Partnership will to facilitate the sale or resale of the Units;
(r) to use its best efforts to effect cause the Units to be listed on the Primary Stock Exchange and to maintain the listing of the Units Common Units, including the Units, on such exchange as and when required by this Agreement.or any other exchange or primary market that is the Partnership’s Primary Stock Exchange;
(qs) That it consents to maintain a transfer agent and, if necessary under the Agents trading in jurisdiction of formation of the Units Partnership, a registrar for the Agents’ own account Common Units; and
(t) to cooperate and furnish such information as may be necessary for any filing for review of the account of its clients at the same time as sales public offering of the Units occur pursuant to this Agreementby FINRA.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent MLV as follows:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative MLV a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative MLV reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative MLV and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative MLV via e-mail in “.pdf” format on such filing date to an e-mail account designated by the RepresentativeMLV; and, at the RepresentativeMLV’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the RepresentativeMLV, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities Units for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and other jurisdictions (domestic or foreign) as the Representative MLV may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.
(f) To furnish or make available to the RepresentativeMLV, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative MLV reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the RepresentativeMLV, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative MLV may reasonably request.
(g) To furnish or make available to the Representative MLV during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative MLV from time to time during the Term such other information as the Representative MLV may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the RepresentativeMLV, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative MLV with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or the Prospectus (i) so that such Registration Statement, Permitted Free Writing Prospectus 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, in the light of the circumstances under which they were made or then prevailing, not misleading or (ii) in order to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative MLV of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to comply with such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.
(i) To timely file such reports pursuant to the Exchange Act in order to generally make available to its security holders an earnings statement (in a form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following the “effective date” (as defined in Rule 158) of the Registration Statement.
(j) To apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus under the caption “Use of Proceeds.”
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the RepresentativeMLV, to pay all costs, expenses, fees and taxes in connection with (A) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act), the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents and to dealers MLV (including costs of mailing and shipment), (B) the registration, issue and delivery of the Units, (C) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to the Agents MLV in connection therewith) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeMLV, (D) the listing of the Units on the NYSE and any registration thereof under the Exchange Act, (E) any filing for review of the public offering of the Units by FINRA, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (G) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative MLV in an amount not to exceed (a) $100,000 25,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date); provided that the Agents MLV shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent MLV notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to in the Prospectus, (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or securities convertible into or exchangeable or exercisable for Units in connection with acquisitions of oil or natural gas assets or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(p) In the case of any Units that are not listed on the NYSE, the Partnership will use its best efforts to effect the listing of the Units on such exchange as and when required by this Agreement.
(q) That it consents to the Agents MLV’s trading in the Units for the Agents’ MLV’s own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement.
Appears in 1 contract
Samples: Distribution Agreement (Atlas Resource Partners, L.P.)
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so to furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale under the securities or blue sky laws of such states as the Underwriters may designate and to maintain such qualifications in effect as long as required for the delivery distribution of the Units, provided that none of the TEPPCO Entities shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise the Underwriters of the receipt by the TEPPCO Entities of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) to make available to the Underwriters in New York City, without charge, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Partnership shall have made any amendments or supplements thereto after the Effective Date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus is required (whether physically or through compliance with Rule 172 under within the nine-month period referred to in Section 10(a)(3) of the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using the Partnership will prepare promptly upon request such amendment or filing any Permitted Free Writing Prospectus and before amending or supplementing amendments to the Registration Statement or and such prospectuses as may be necessary to permit compliance with the Prospectus requirements of Section 10(a)(3) of the Securities Act.
(c) to advise the Underwriters promptly and (if requested by you) to confirm such advice in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), writing (i) to furnish when any post-effective amendment to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, Registration Statement becomes effective and (ii) that if Rule 430A under the Partnership shall not use or file any such Permitted Free Writing Securities Act is used, when the Prospectus or file any such proposed amendment or supplement to which is filed with the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement Commission pursuant to Rule 424(b) under the Securities Act (and within which the time periods required Partnership agrees to file in a timely manner under such Rules).
(d) to advise the Underwriters promptly, confirming such advice in writing, of any request by Rule 424(b) and Rules 430Athe Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, 430B or 430C under of notice of institution of proceedings for or the Securities Act)entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to file advise the Underwriters promptly of any Permitted Free Writing proposal to amend or supplement the Registration Statement or Prospectus to the extent required including by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or filing any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated documents that would be incorporated therein by the Representative; and, at the Representative’s requestreference, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations Underwriters with a draft of such exchange proposed amendment in advance of such filing and to file no such amendment or marketsupplement to which the Underwriters shall object in writing.
(ce) To timely to file promptly all reports and any definitive proxy or information statements statement required to be filed by the Partnership or TE Products with the Commission pursuant in order to Sections 13(a), 13(c), 14 or 15(d) of comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise promptly notify the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws Underwriters of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Unitsfiling.
(f) To furnish if necessary or make available appropriate, to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with file a registration statement pursuant to Rule 172 462(b) under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To to furnish or otherwise make available to the Representative during Underwriters and, upon request, to each of the Term other Underwriters for a period of three years from the date of this Agreement the following documents, provided such documents are not otherwise publicly available via EDGAR: (i) copies of any reports or other communications which the Partnership Parxxxxxhip shall send to the holders of any class of its stockholders limited partnership interests or debt securities or shall from time to time publish or publicly disseminate and disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Partnership is listed, and to furnish to the Representative from time to time during the Term (iv) such other information as the Representative Underwriters may reasonably request regarding the Partnership TEPPCO Entities or its Subsidiariestheir subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet websitebecome available.
(h) If at to advise the Underwriters promptly of the happening of any event known to the Partnership or its subsidiaries within the time when during which a prospectus Prospectus relating to the Units is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of under the Securities Act or otherwise)which, in the judgment of the Partnership, would require the making of any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or change in the Prospectus (i) then being used, or in the information incorporated therein by reference, so that such Registration Statement, Permitted Free Writing the Prospectus or the Prospectus, as the case may be, will would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading or (ii) in order misleading, and, during such time, to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with furnish, at the Commission Partnership's expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission or change and to comply with furnish to the Underwriters a copy of such requirements, and, in the case of an proposed amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have supplement before filing any such amendment declared or become effective as soon as practicablesupplement with the Commission.
(i) To timely file such reports pursuant to make generally available to holders of its securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, and to deliver to the Exchange Act in order to generally make available to its security holders Underwriters, an earnings statement of the Partnership (in a form complying with which will satisfy the provisions of Section 11(a) of the Securities Act and Act, including Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following Rules and Regulations) for a period of twelve months beginning after the “effective date” Effective Date of the Registration Statement (as defined in Rule 158158(c) of the Registration StatementSecurities Act) as soon as is reasonably practicable after the termination of such twelve-month period.
(j) To to furnish to the Underwriters, upon request and without charge, two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all financial statements, schedules and exhibits thereto and documents incorporated by reference therein), which are certified by an officer of the General Partner to be true and correct, and sufficient conformed copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters.
(k) to furnish to the Underwriters as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the TEPPCO Entities and their subsidiaries which have been read by the independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof.
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “"Use of Proceeds.”
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases " in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange ActProspectus.
(lm) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters except as set forth under Section 5 hereof -18- and (iii), (iv) and (vi) below) in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act)Statement, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issuance and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, an Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof), and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on the NYSE any securities exchange and any registration thereof under the Exchange Act, (Evi) any fees payable to investment rating agencies with respect to the Units, (vii) any filing for review of the public offering of the Units by FINRAthe NASD, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (Gviii) the performance of the Partnership’s 's other obligations hereunder; hereunder and (Hix) the fees costs and disbursements expenses of counsel the TEPPCO Entities relating to the Representative in an amount not to exceed (a) $100,000 investor presentations on any "road show" undertaken in connection with the negotiation marketing of the offering of the Units, including, without limitation, expenses associated with the production of road show slides and execution graphics, fees and expenses of this Agreement (which shall include all matters required to be completed any consultants engaged in connection with the execution of this Agreement, including road show presentations with the preparation and filing prior approval of the Prospectus Supplement) Partnership, travel and (b) $15,000 in connection with each review lodging expenses of diligence materials the representatives and officers of the TEPPCO Entities and any such consultants, and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for cost of any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material aircraft chartered in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunderroad show.
(n) During each to furnish to the Underwriters, before filing with the Commission subsequent to the Effective Date of the Registration Statement and during the period commencing on referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the date Exchange Act.
(o) to comply with all the provisions of each Transaction Notice and ending at any undertakings contained in the close of business on the Settlement Date for the related Agency TransactionRegistration Statement.
(p) not to sell, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (andoffer or agree to sell, in any eventcontract to sell, at least four (4) business days) before it offers or contracts to sell or exchangehypothecate, sellspledge, exchanges, grants grant any option to sell or otherwise disposes of dispose of, directly or indirectly (or enter into any Units transaction which is designed to, or securities convertible into or exchangeable for Unitsmight reasonably be expected to, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to result in the Prospectusdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise)), (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Common Units or securities convertible into or exchangeable or exercisable for Common Units in connection with acquisitions or warrants or other rights to purchase Common Units or any other securities of oil the Partnership that are substantially similar to Units, or natural gas assets file or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent cause to eliminate fractional securities. Any lock-up provisions relating to be declared effective a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 registration statement under the Securities Act.
(p) In Act relating to the case offer and sale of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or other rights to purchase Units or any other securities of the Partnership that are not listed on substantially similar to Common Units or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the NYSEmeaning of Section 16 of the Exchange Act, the Partnership will use its best efforts or publicly announce an intention to effect any such transaction for a period of ninety (90) days after the listing date hereof (the "Lock-Up Period"), without the prior written consent of Salomon Smith Barney Inc., except for (i) the registration of the Units on such exchange as and when required by Commxx Xxxxx xxx txx xxxes to the Underwriters pursuant to this Agreement, (ii) issuances of Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement and the Prospectus, and (iii) the issuance of employee options not exercisable during the Lock-Up Period pursuant to option plans described in the Registration Statement and the Prospectus.
(q) That it consents not, at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales cause or result in, which will constitute, stabilization of the price of the Common Units occur pursuant to this Agreementfacilitate the sale or resale of any of the Units.
(r) to timely file any financial statements required by Rule 3-05(b)(2) of Regulation S-X.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and or other jurisdictions (domestic or foreign) as the Representative Underwriters may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required the Underwriters may request for the distribution of the Units; provided, however, that the Partnership shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation entity or as a dealer in securities to consent to the service of process under the Laws of any such jurisdiction (except service of process with respect to the offering and sale of the Units); and to promptly advise the Underwriters of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for offer or sale in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect the initiation or threatening of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.purpose;
(fb) To furnish or to make available to the RepresentativeUnderwriters, without chargeas soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus and (exclusive of Incorporated Documents) or of the Prospectus Supplement and as amended or supplemented (exclusive of Incorporated Documents) if the Partnership shall have made any amendments or supplements thereto after the effective date of the Registration Statement as the Representative reasonably requests Underwriters may request for so long as the delivery of purposes contemplated by the Prospectus Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule), in connection with the sale of the Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Units may be sold, the Partnership will use its reasonable best efforts to cause such post-effective amendment or the Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as reasonably possible; and the Partnership hereby consents to will advise the use of such copies for purposes permitted Underwriters promptly and, if requested by the Securities Act. The Partnership Underwriters, will furnish confirm such advice in writing, (i) when such post-effective amendment or make available to the RepresentativeRegistration Statement has become effective, without chargeand (ii) if Rule 430A under the Act is used, during the period when the Prospectus is required (or, but for filed with the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers Commission pursuant to Rule 173(d424(b) under the Act (which the Partnership agrees to file in a timely manner in accordance with such Rules);
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) to advise the Underwriters promptly, confirming such advice in writing, of any request by the Commission for amendments or otherwise), such number of copies of supplements to the Registration Statement, any Permitted Free Writing Prospectus and the Preliminary Prospectus, the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To furnish or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the Prospectus (i) so that such entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, Permitted Free Writing to use its best efforts to obtain the lifting or removal of such order as soon as possible; other than a Current Report on Form 8-K disclosing the terms of this Agreement and containing exhibits to the Registration Statement, for the period of time covered by Section 4(g), to advise the Underwriters promptly of any proposal to amend or supplement the Registration Statement, the Preliminary Prospectus or the Prospectus, and to provide the Underwriters and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Underwriters shall reasonably object in writing (unless the Partnership is advised by counsel that it is required by Law to make such filing);
(g) subject to Section 4(f) hereof and subsequent to the date of the Prospectus, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Partnership with the Commission in order to comply with the Exchange Act and for so long as the case may bedelivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Units;
(h) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will which event, in the opinion of the Partnership or the Underwriters (upon advice of counsel) would require the making of any change in the Prospectus then being used so that the Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or (ii) in order supplement the Prospectus to cause the Prospectus to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of and, in each case, during such event or condition and of its intention time, subject to file such amendment or supplement and will promptly Section 4(f) hereof, to prepare and file with furnish, at the Commission Partnership’s expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission change or to comply with effect such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.compliance;
(i) To timely file such reports pursuant to the Exchange Act in order to make generally make available to its security holders Unitholders, and to deliver to the Underwriters, an earnings statement (in a form complying with which need not be audited) of the Partnership (which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering a period of twelve months beginning after the twelve-month period beginning not later than effective date of the first day Registration Statement (as defined in Rule 158(c) under the Act) (the “Effective Date”) as soon as is reasonably practicable after the Effective Date (it being understood that the Partnership shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Partnership’s fiscal quarter next following year, 455 days after the “effective date” end of the Partnership’s current fiscal quarter);
(as defined in Rule 158j) to furnish or make available to the Underwriters upon request a reasonable number of copies of the Registration Statement., as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein);
(jk) To unless otherwise available through XXXXX, if requested by the Underwriters, to furnish to the Underwriters as early as practicable prior to the time of purchase and any additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Partnership and the Subsidiaries which have been read by the Partnership’s independent registered public accountants, as stated in their letter to be furnished pursuant to Section 6(b) hereof;
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “Use of Proceeds.”” in the Preliminary Prospectus;
(km) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under Statement, the Securities Act)Basic Prospectus, the Preliminary Prospectus, the Prospectus Supplement, the Prospectus, any each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issue, sale and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws or foreign Laws and the determination of their eligibility for investment under state law as aforesaid or foreign Law (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the reasonable printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on any securities exchange or qualification of the NYSE Units for quotation on the Primary Stock Exchange and any registration thereof under the Exchange Act, (Evi) any filing for review of the public offering of the Units by the FINRA, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters in an amount not to exceed $20,000; (Fvii) the fees and disbursements of counsel any transfer agent or registrar for the Units, (viii) the costs and expenses of the Partnership relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Partnership and any such consultants, and half the cost of any aircraft used by the Partnership’s independent registered public accounting firm; Partnership in connection with the road show, and (Gix) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreementprovided, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated herebyhowever, that the Partnership will shall not be responsible for fees of counsel other than counsel to the Partnership and those fees specifically referred to in this Section 4(m).
(n) 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;
(o) beginning on the date hereof and ending on, and including, the date that is 45 days after the date of the Prospectus Supplement (as extended pursuant to this Section 4(o), the “Lock-Up Period”), without the prior written consent of Xxxxx Fargo, 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for Units in for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a manner in violation of registration statement under the Securities Act; the Partnership will not distribute any offering material in connection with Act relating to the offer and sale of the Units, other than the Registration Statement, the Prospectus any Common Units or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred that are substantially similar to in the Prospectus, (iii) any Common Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such transaction is to be settled by delivery of Common Units 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 Units as contemplated by this Agreement and the sale of the Units to the Underwriters pursuant to this Agreement, (B) issuances of Common Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (C) the issuance of employee unit stock options, phantom units or dividend equivalent rights that are not exercisable or do not vest, as applicable, during the Lock-Up Period pursuant to benefits plans described in the Registration Statement (excluding the exhibits thereto), the Preliminary Prospectus and the Prospectus, (D) the deemed issuance of Common Units under Section 16 of the Exchange Act upon the cash settlement of phantom units or stock appreciation rights outstanding as of the date of this Agreement, (E) the filing of a registration statement on Form S-8 to register Common Units under benefits plans disclosed in the Registration Statement, the Preliminary Prospectus and the Prospectus, (F) the filing of a universal shelf registration statement on Form S-3 to register Common Units or other Partnership securities, provided that the Partnership shall not issue any Common Units thereunder until expiration of the Lock-Up Period, (G) the issuance of Common Units in a private placement exempt from registration under the Act, provided that the purchaser of such Common Units enters into a Lock-Up Agreement for the remainder of the Lock-Up Period, (H) the pledge of any Common Units or other Partnership securities to secure loans to such persons or entities in connection with acquisitions any financing transaction to which such persons or entities are parties, provided that such Common Units or other Partnership securities may not be sold or disposed of oil or natural gas assets or exploration and production companies or (v) any Units sold in connection with the exercise by the Partnership’s transfer agent to eliminate fractional securities. Any locklender of any remedies as a secured party until the expiration of the Lock-up provisions relating to a Principal Transaction shall be set forth in Up Period, (I) the applicable Terms Agreement.
issuance of Common Units upon conversion of any Class B Units, and (oJ) To retain, pursuant to reasonable procedures developed in good faith, copies entry into an equity distribution agreement for an “at the market offering” under Rule 415(a)(4) of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 Act and any related filings required under the Securities Act or the Exchange Act, including a prospectus supplement and Current Report on Form 8-K, provided that the Partnership shall not issue any Common Units thereunder until expiration of the Lock-Up Period.
(p) In not, at any time at or after the case execution of this Agreement, to, directly or indirectly, offer or sell any Units by means of any Units that are “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 Units, in each case other than the Prospectus and any Permitted Free Writing Prospectus;
(q) not listed on to, and to cause the NYSESubsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Partnership will to facilitate the sale or resale of the Units;
(r) to use its best efforts to effect cause the Units to be listed on the Primary Stock Exchange and to maintain the listing of the Units Common Units, including the Units, on such exchange as and when required by this Agreement.or any other exchange or primary market that is the Partnership’s Primary Stock Exchange;
(qs) That it consents to maintain a transfer agent and, if necessary under the Agents trading in jurisdiction of formation of the Units Partnership, a registrar for the Agents’ own account Common Units; and
(t) to cooperate and furnish such information as may be necessary for any filing for review of the account of its clients at the same time as sales public offering of the Units occur pursuant to this Agreementby FINRA.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and or other jurisdictions (domestic or foreign) as the Representative you may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required you may request for the distribution of the Units; provided, however, that none of the Partnership Capital Entities shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation entity or as a dealer in securities in securities, or to consent to the service of process under the laws of any such jurisdiction in which it is not so qualified (except service of process with respect to the offering and sale of the Units) or to subject itself to any taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which ; and to promptly advise you of the receipt by the Capital Entities of any notification with respect to the suspension of the qualification of the Units have been so qualified for offer or exempt, sale in any jurisdiction or the Partnership will file initiation or threatening of any proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.purpose;
(fb) To furnish or to make available to the RepresentativeUnderwriters in New York City, without chargeas soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus and (or of the Prospectus Supplement and as amended or supplemented if the Capital Parties shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Representative reasonably requests Underwriters may request for so long as the delivery of purposes contemplated by the Prospectus Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To furnish or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales the sale of the Units (whether Units, a prospectus after the nine-month period referred to meet the request of purchasers pursuant to Rule 173(din Section 10(a)(3) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or the Prospectus (i) so that such Registration Statement, Permitted Free Writing Prospectus 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, in the light of the circumstances under which they were made or then prevailing, not misleading or (ii) in order to comply with the requirements of the Securities Act or the Exchange Act, or after the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to comply with such requirements, and, in the case of an amendment or time a post-effective amendment to the Registration StatementStatement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be filed with the Commission and become effective before the Units may be sold, the Partnership will use its commercially reasonable best efforts to have cause such post- effective amendment declared or such Registration Statement to be filed and become effective effective, and will pay any applicable fees in accordance with the Act, as soon as practicable.
possible; and the Partnership will advise you promptly and, if requested by you, will confirm such advice in writing, (i) To timely file when such reports pursuant to the Exchange Act in order to generally make available to its security holders an earnings statement (in a form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering the twelvepost-month period beginning not later than the first day of the Partnership’s fiscal quarter next following the “effective date” (as defined in Rule 158) of the Registration Statement.
(j) To apply the net proceeds from the sale of the Units in the manner described in the amendment or such Registration Statement or the Prospectus under the caption “Use of Proceeds.”
(k) Not tohas become effective, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (A) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act), the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents and to dealers (including costs of mailing and shipment), (B) the registration, issue and delivery of the Units, (C) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to the Agents in connection therewith) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Representative, (D) the listing of the Units on the NYSE and any registration thereof under the Exchange Act, (E) any filing for review of the public offering of the Units by FINRA, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (G) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of if Rule 430A under the Partnership referred to in Act is used, when the Prospectus, (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice Prospectus is delivered, (iv) any Units or securities convertible into or exchangeable or exercisable for Units in connection with acquisitions of oil or natural gas assets or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission pursuant to Rule 424(b) under the Act (which the Capital Parties agree to file in a timely manner in accordance with such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 433 172 under the Securities Act.
(p) In the case of Act or any Units that are not listed on the NYSE, the Partnership will use its best efforts to effect the listing of the Units on such exchange as and when required by this Agreement.
(q) That it consents to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement.similar
Appears in 1 contract
Samples: Underwriting Agreement (Capital Product Partners L.P.)
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as follows:
(a) For so subject to Section 4(b), to furnish such information as may be reasonably required and otherwise to cooperate in qualifying the Units for offer and sale under the securities or blue sky laws of such states and other jurisdictions as FBR may reasonably designate or as required for the offer and sale of the Units and to maintain such qualifications in effect as long as required by such laws for the delivery distribution of a prospectus the Units;
(b) to cooperate with FBR and its counsel in arranging for the qualification or registration of the Units for offering and sale under, or establishing an exemption from such qualification or registration under, the securities or blue sky laws of such jurisdictions as FBR may designate; provided, that in no event shall any Legacy Party be obligated to qualify to do business in any jurisdiction where it is required (whether physically not now so qualified or through compliance with Rule 172 under the Securities Act or to take any similar rule) action that would subject it to service of process in connection with suits, other than those arising out of the offering or sale of the Units, before using or filing in any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall jurisdiction where it is not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.now so subject;
(c) To timely file all reports to prepare the Final Memorandum in a form reasonably approved by FBR and to furnish promptly (and with respect to the initial delivery of such Final Memorandum, not later than 8:30 a.m. (Central time) on the third day following the execution and delivery of this Agreement) to FBR as many copies of the Final Memorandum (and any definitive proxy amendments or information statements required to be filed supplements thereto) as FBR may reasonably request for the purposes contemplated by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(dthis Agreement;
(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise FBR promptly, confirming the Representativegeneral nature of such advice in writing, promptly after the Partnership receives notice thereof, of (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence happening of any event as a result known to the Partnership prior to the date on which all of which the Prospectus or 144A Units have been sold by FBR, which, in the reasonable judgment of the Partnership, would require the making of any Permitted Free Writing Prospectus as change in the Final Memorandum then amended or supplemented includes any being used so that the Final Memorandum would not include an untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaserunder which they are made, not misleading and to prepare and furnish, at the Partnership's expense, to FBR (viand to any persons reasonably designated by FBR) promptly any proposed amendments or supplements to the Final Memorandum as may be necessary so that the Final Memorandum does not include or omit to state such material fact, and (ii) the receipt of any notification with respect to the modification, rescission, withdrawal or suspension of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities Units, or of any exemption from such qualification or from registration of the Units, for offering or sale and in any loss jurisdiction, or suspension of the initiation or threatening of any exemption from proceedings for any of such purposes and, if any government agency or authority should issue any such qualificationorder, to use commercially make every reasonable efforts effort to obtain the lifting or withdrawal thereof.removal of such order as soon as possible;
(e) To to furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.
(f) To furnish or make available to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for once an initial public offering registration statement of the provisions of Rule 172Partnership is effective, would be requiredmake available, including through electronic filings with the Commission) to be delivered by applicable law (whether to meet FBR for a period of two years from the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To furnish or make available to the Representative during the Term Closing Time (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies a copy of all annual, quarterly and current reports supplied to holders of the Units, and (ii) if requested in writing by FBR, a copy of all reports filed by the Partnership with the Commission, provided that any document filed electronically with the Commission on Forms 10-K, 10-Q shall satisfy the above delivery requirements with respect to such document;
(f) not to amend or supplement the Preliminary Memorandum or the Final Memorandum unless FBR shall previously have been advised thereof and 8-K, shall have consented thereto (which consent shall not be unreasonably withheld or delayed) or not have reasonably objected thereto (for legal reasons) in writing within a reasonable time after being furnished a copy thereof;
(g) during any period in the two years (or such other similar form shorter period as may then be designated by applicable under the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request Securities Act regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(hholding period for securities under Rule 144(k) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of under the Securities Act or otherwiseany successor rule) after the Closing Time in which the Partnership is not subject to Section 13 or 15(d) of the Exchange Act to furnish, upon request, to any holder of such Units the information ("RULE 144A INFORMATION") specified in Rule l44A(d)(4) under the Securities Act and any additional information ("PORTAL INFORMATION") required by the NASD PortalSM Market ("PORTAL"), and any event shall occur or condition shall exist as a result of which it is necessary to amend such Rule 144A Information will not, at the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or the Prospectus (i) so that such Registration Statementdate thereof, Permitted Free Writing Prospectus or the Prospectus, as the case may be, will not include contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading misleading;
(h) if the 144A Units are not delivered by the Partnership to FBR for any reason other than the termination of this Agreement pursuant to Sections 6(a)(iii) through (v) or the default by FBR in its obligations hereunder or the failure of FBR's counsel to deliver its opinion required hereunder (iiprovided that counsel to the Partnership has timely delivered its opinion required hereunder), to reimburse FBR for all of its out-of-pocket expenses relating to the transactions contemplated hereby, including the reasonable fees and disbursements of its legal counsel;
(i) that no Partnership Entity, nor any of their respective affiliates (as defined in order to comply with the requirements Section 501(b) of Regulation D) will, whether directly or through any agent or person acting on its behalf (other than FBR): (i) offer Common Units or any other securities convertible into or exchangeable or exercisable for such Common Units in a manner in violation of the Securities Act or the Exchange Actrules and regulations thereunder, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file (ii) distribute any other offering material in connection with the Commission such amendment or supplement offer and sale of the Units, other than as may be necessary to correct such untrue statement or omission or to comply with such requirements, and, described in the case Offering Memorandum, or (iii) sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.
(i) To timely file such reports pursuant to the Exchange Act in order to generally make available to its any security holders an earnings statement (in a form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following the “effective date” (as defined in Rule 158) the Securities Act), any of which will be integrated with the Registration Statement.
(j) To apply the net proceeds from the offering and sale of the Units in a manner that would require the manner described in registration under the Registration Statement Securities Act of the sale to FBR or the Prospectus under Eligible Purchasers of the caption “Use 144A Units or to the Accredited Investors of Proceeds.”the Private Placement Units;
(kj) Not to, and to cause that no Partnership Entity nor any of its Subsidiaries not to, affiliates will take, directly or indirectly, any action designed to to, or that might be reasonably expected to, cause or result in, or that constitutes or might reasonably be expected to constitute, the in stabilization or manipulation of the price of any security the Units;
(k) that, except as permitted by the Securities Act, prior to the later of the Partnership to facilitate Closing Time, the sale Option Closing Time or resale completion of the distribution of Units; provided that nothing herein shall prevent the , no Partnership from filing or submitting reports under the Exchange Act or issuing press releases Entity will distribute any offering materials in the ordinary course of business or bidding for or purchasing Units in accordance connection with Rule 10b-18 under the Exchange Act.Exempt Resales;
(l) Except except as otherwise agreed between the Partnership provided in Sections 1(a) and the Representative(b), to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act), the Prospectus, any Permitted Free Writing Prospectus Offering Memorandum and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents and to dealers FBR (including costs of mailing and shipment), (Bii) the registration, issue sale and delivery of the Units, including any stock or other transfer taxes or duties payable upon the sale of the Units, (Ciii) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable any filing fees or legal fees and filing fees and other disbursements expenses of counsel to the Agents in connection therewithFBR) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeFBR and to dealers, (Div) the listing printing of this Agreement, (v) the designation of the Units on the NYSE and any registration thereof under the Exchange Actas PORTAL-eligible securities by PORTAL, (Evi) any filing for review the costs and expenses of the public offering Partnership and FBR incurred in connection with the marketing of the Units by FINRAUnits, including "road show" costs and expenses (but excluding 50% of the cost of any aircraft chartered in connection with the "road show" which FBR will be responsible for), (Fvii) the all fees and disbursements of counsel to the Partnership and of accountants for the Partnership’s independent registered public accounting firm; , (Gviii) the fees and expenses of any transfer agent or registrar for the Units, and (ix) the performance of the Partnership’s 's other obligations hereunder; . Except as provided in Section 4(h) and (H) the this Section 4(l), FBR shall bear all fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreementits legal counsel.
(m) With from and after the Closing Time, to have in place and maintain a system of accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.differences;
(n) During each to apply the net proceeds from the sale of the Units in the manner set forth under the caption "Use of Proceeds" in the Final Memorandum;
(o) that no Partnership Entity will be required to register as an "investment company" within the meaning of the Investment Company Act;
(p) that, as soon as reasonably practicable following completion of the transactions contemplated hereunder, to use commercially reasonable efforts to cause the Partnership's or the General Partner's board of directors to approve any changes to the corporate governance policies and procedures that may be required by law prior to filing any registration statement with the Commission; and
(q) to refrain during the period commencing on the date of each Transaction Notice this Agreement until 180 days after the completion of this offering and ending at from the close effective date of business on the Settlement Date Mandatory Shelf Registration Statement (as defined in the Registration Rights Agreement) until 60 days thereafter, without the prior written consent of FBR, from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right or warrant for the related Agency Transactionsale of, lending or otherwise disposing of or transferring, directly or indirectly, any equity securities of the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in or any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exercisable or exchangeable for Unitsequity securities of the Partnership, warrants or (ii) entering into any rights to purchase swap or acquire Units; providedother arrangement that transfers, that in whole or in part, directly or indirectly, any of the economic consequences of ownership of equity securities of the Partnership, whether any such notice shall not be required with respect to transaction described in clause (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any above is to be settled by delivery of Common Units or such other equity-based awards issued securities, in cash or options otherwise. The foregoing sentence shall not apply to purchase Units granted pursuant to employee benefit plans issuances of securities of the Partnership referred to in the Prospectus, (iiiA) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or securities convertible into or exchangeable or exercisable for Units in connection with acquisitions of oil or natural gas assets or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(p) In the case of any Units that are not listed on the NYSE, the Partnership will use its best efforts to effect the listing of the Units on such exchange as and when required by this Agreement.
(q) That it consents to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement; (B) pursuant to the Contribution Agreement; (C) pursuant to the exercise and issuance of options; (D) as a pro rata distribution to the Partnership's partners; (E) under any of the Partnership's benefit plans; (F) to third parties as consideration for acquisitions provided that such third parties agree to be bound by the same restrictions; and (G) pursuant to the IPO Registration Statement (as defined in the Registration Rights Agreement).
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before amending or supplementing the Registration Statement or the Prospectus (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (i) to furnish to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; and, at the Representative’s request, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations of such exchange or market.
(c) To timely file all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and or other jurisdictions (domestic or foreign) as the Representative Representatives may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required the Representatives may request for the distribution of the Units; provided, however, that the Partnership shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation entity or as a dealer in securities to consent to the service of process under the Laws of any such jurisdiction (except service of process with respect to the offering and sale of the Units); and to promptly advise the Representatives of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for offer or sale in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect the initiation or threatening of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Units.purpose;
(fb) To furnish or to make available to the RepresentativeUnderwriters, without chargeas soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus and (exclusive of Incorporated Documents) or of the Prospectus Supplement and as amended or supplemented (exclusive of Incorporated Documents) if the Partnership shall have made any amendments or supplements thereto after the effective date of a Registration Statement as the Representative reasonably requests Underwriters may request for so long as the delivery of purposes contemplated by the Prospectus Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule), in connection with the sale of the Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to a Registration Statement is required pursuant to Item 512(a) of Regulation S-K under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to such Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to a Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Units may be sold, the Partnership will use its reasonable best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as reasonably possible; and the Partnership hereby consents to will advise the use of such copies for purposes permitted Representatives promptly and, if requested by the Securities Act. The Partnership Representatives, will furnish confirm such advice in writing, (i) when such post-effective amendment or make available to such Registration Statement has become effective, and (ii) if Rule 430A under the RepresentativeAct is used, without charge, during the period when the Prospectus is required (or, but for filed with the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers Commission pursuant to Rule 173(d424(b) under the Act (which the Partnership agrees to file in a timely manner in accordance with such Rules);
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) to advise the Representatives promptly, confirming such advice in writing, of any request by the Commission for amendments or otherwise), such number of copies of supplements to the Registration Statement, any Permitted Free Writing Prospectus and Preliminary Prospectus, the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To furnish or make available to the Representative during the Term (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative from time to time during the Term such other information as the Representative may reasonably request regarding the Partnership or its Subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet website.
(h) If at any time when a prospectus is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise), any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the Prospectus (i) so that such entry of a stop order, suspending the effectiveness of a Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of a Registration Statement, Permitted Free Writing to use its best efforts to obtain the lifting or removal of such order as soon as possible; other than a Current Report on Form 8-K disclosing the terms of this Agreement and containing exhibits to the Registration Statement, for the period of time covered by Section 5(g), to advise the Representatives promptly of any proposal to amend or supplement a Registration Statement, any Preliminary Prospectus or the Prospectus, and to provide the Representatives’ and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Representatives shall reasonably object in writing (unless the Partnership is advised by counsel that it is required by Law to make such filing);
(g) subject to Section 5(f) hereof and subsequent to the date of the Prospectus, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Partnership with the Commission in order to comply with the Exchange Act and for so long as the case may bedelivery of a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale of the Units;
(h) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Units, will which event, in the opinion of the Partnership or the Underwriters (upon advice of counsel) would require the making of any change in the Prospectus then being used so that the Prospectus would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or (ii) in order supplement the Prospectus to cause the Prospectus to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of and, in each case, during such event or condition and of its intention time, subject to file such amendment or supplement and will promptly Section 5(f) hereof, to prepare and file with furnish, at the Commission Partnership’s expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission change or to comply with effect such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.compliance;
(i) To timely file such reports pursuant to the Exchange Act in order to make generally make available to its security holders Unitholders, and to deliver to the Representatives, an earnings statement (in a form complying with which need not be audited) of the Partnership (which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering a period of twelve months beginning after the twelve-month period beginning not later than effective date of a Registration Statement (as defined in Rule 158(c) under the first day Act) (the “Effective Date”) as soon as is reasonably practicable after the Effective Date (it being understood that the Partnership shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Partnership’s fiscal quarter next following year, 455 days after the “effective date” end of the Partnership’s current fiscal quarter);
(as defined in Rule 158j) to furnish or make available to the Representatives upon request a reasonable number of copies of the Registration Statement.
, as initially filed with the Commission, and of all amendments thereto (jincluding all exhibits thereto and documents incorporated by reference therein) To apply the net proceeds from the sale and sufficient copies of the Units in foregoing (other than exhibits) for distribution of a copy to each of the manner described in the Registration Statement or the Prospectus under the caption “Use of Proceeds.”other Underwriters;
(k) Not tounless otherwise available through XXXXX, if requested by the Representatives, to furnish to the Representatives as early as practicable prior to the time of purchase and to cause its Subsidiaries any additional time of purchase, as the case may be, but not tolater than two business days prior thereto, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation a copy of the price of any security latest available unaudited interim and monthly consolidated financial statements, if any, of the Partnership and the Subsidiaries which have been read by the Partnership’s independent registered public accountants, as stated in their letter to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Act.be furnished pursuant to Section 8(b) hereof;
(l) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under Statement, each Basic Prospectus, each Preliminary Prospectus, the Securities Act)Prospectus Supplement, the Prospectus, any each Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue sale and delivery of the UnitsUnits including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Units to the Underwriters, (Ciii) the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws or foreign Laws and the determination of their eligibility for investment under state law as aforesaid or foreign Law (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the reasonable printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on any securities exchange or qualification of the NYSE Units for quotation on the Primary Stock Exchange and any registration thereof under the Exchange Act, (Evi) any filing for review of the public offering of the Units by the FINRA, including the reasonable legal fees and filing fees and other disbursements of counsel to the Underwriters relating to FINRA matters in an amount not to exceed $20,000; (Fvii) the fees and disbursements of counsel any transfer agent or registrar for the Units, (viii) the costs and expenses of the Partnership relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Units to prospective investors and the Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Partnership and any such consultants, and half the cost of any aircraft chartered in connection with the Partnership’s independent registered public accounting firm; road show, and (Gix) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative in an amount not to exceed (a) $100,000 in connection with the negotiation and execution of this Agreement (which shall include all matters required to be completed in connection with the execution of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 in connection with each review of diligence materials and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With 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;
(n) beginning on the date hereof and ending on, and including, the date that is 60 days after the date of the Prospectus Supplement (as extended pursuant to this Section 5(n), the “Lock-Up Period”), without the prior written consent of Xxxxx Fargo, 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 the offering(s) contemplated herebyto, that the Partnership will not offer any Common Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for Units in for, or any warrants or other rights to purchase, the foregoing, (ii) file or cause to become effective a manner in violation of registration statement under the Securities Act; the Partnership will not distribute any offering material in connection with Act relating to the offer and sale of the Units, other than the Registration Statement, the Prospectus any Common Units or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(n) During each period commencing on the date of each Transaction Notice and ending at the close of business on the Settlement Date for the related Agency Transaction, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (and, in any event, at least four (4) business days) before it offers or contracts to sell or exchange, sells, exchanges, grants any option to sell or otherwise disposes of any Units or securities convertible into or exchangeable for Units, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred that are substantially similar to in the Prospectus, (iii) any Common Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or 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 Units or any other securities of the Partnership that are substantially similar to Common Units, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether any such transaction is to be settled by delivery of Common Units 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 Units as contemplated by this Agreement and the sale of the Units to the Underwriters pursuant to this Agreement, (B) issuances of Common Units upon the exercise of options or warrants disclosed as outstanding in a Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus, (C) the issuance of employee unit stock options not exercisable during the Lock-Up Period pursuant to option plans described in a Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus, (D) the filing of a registration statement on Form S-8 to register Common Units under option plans disclosed in a Registration Statement, each Preliminary Prospectus and the Prospectus, (E) the filing of a universal shelf registration statement on Form S-3 to register Common Units or other Partnership securities, provided that the Partnership shall not issue any Common Units thereunder until expiration of the Lock-Up Period, (F) the issuance of Common Units in a private placement exempt from registration under the Act, provided that the purchaser of such Common Units enters into a Lock-Up Agreement for the remainder of the Lock-Up Period, and (G) the pledge of any Common Units or other Partnership securities to secure loans to such persons or entities in connection with acquisitions any financing transaction to which such persons or entities are parties, provided that such Common Units or other Partnership securities may not be sold or disposed of oil in connection with the exercise by the lender of any remedies as a secured party until the expiration of the Lock-Up Period; provided, however, that if (x) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Partnership issues an earnings release or natural gas assets material news or exploration and production companies a material event relating to the Partnership occurs; or (vy) any Units sold prior to the expiration of the Lock-Up Period, the Partnership announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 5(n) shall continue to apply until the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs unless the Representatives, on behalf of the Underwriters, waive such extension in the applicable Terms Agreement.writing;
(o) To retainnot, pursuant to reasonable procedures developed at any time at or after the execution of this Agreement, to, directly or indirectly, offer or sell any Units by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in good faithconnection with the offer or sale of the Units, copies of in each case other than the Prospectus and any Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.Prospectus;
(p) In not to, and to cause the case Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any Units that are not listed on the NYSE, security of the Partnership will to facilitate the sale or resale of the Units;
(q) to use its best efforts to effect maintain the listing of the Units Common Units, including the Units, on such exchange as and when required by this Agreement.the Primary Stock Exchange;
(qr) That it consents to maintain a transfer agent and, if necessary under the Agents trading in jurisdiction of formation of the Units Partnership, a registrar for the Agents’ own account Common Units; and
(s) to cooperate and furnish such information as may be necessary for any filing for review of the account of its clients at the same time as sales public offering of the Units occur pursuant to this Agreementby FINRA.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsagrees:
(a) For so to furnish such information as may be required and otherwise to cooperate in qualifying the Units for offering and sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect as long as required for the delivery distribution of the Units, provided that none of the TEPPCO Entities shall be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise you of the receipt by the TEPPCO Entities of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) to make available to the Underwriters in New York City, without charge, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Partnership shall have made any amendments or supplements thereto after the Effective Date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver a prospectus is required (whether physically or through compliance with Rule 172 under within the nine-month period referred to in Section 10(a)(3) of the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using the Partnership will prepare promptly upon request such amendment or filing any Permitted Free Writing Prospectus and before amending or supplementing amendments to the Registration Statement or and such prospectuses as may be necessary to permit compliance with the Prospectus requirements of Section 10(a)(3) of the Securities Act.
(c) to advise you promptly and (if requested by you) to confirm such advice in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), writing (i) to furnish when any post-effective amendment to the Representative a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, Registration Statement becomes effective and (ii) that if Rule 430A under the Partnership shall not use or file any such Permitted Free Writing Securities Act is used, when the Prospectus or file any such proposed amendment or supplement to which is filed with the Representative reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative and to file such Prospectus Supplement Commission pursuant to Rule 424(b) under the Securities Act (and within which the time periods required Partnership agrees to file in a timely manner under such Rules).
(d) to advise you promptly, confirming such advice in writing, of any request by Rule 424(b) and Rules 430Athe Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, 430B or 430C under of notice of institution of proceedings for or the Securities Act)entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to file advise you promptly of any Permitted Free Writing proposal to amend or supplement the Registration Statement or Prospectus to the extent required including by Rule 433 under the Securities Act; to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or filing any successor system thereto (collectively, “XXXXX”)) to the Representative via e-mail in “.pdf” format on such filing date to an e-mail account designated documents that would be incorporated therein by the Representative; and, at the Representative’s requestreference, to furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected as may be required by the rules or regulations you with a draft of such exchange proposed amendment in advance of such filing and to file no such amendment or marketsupplement to which you shall object in writing.
(ce) To timely to file promptly all reports and any definitive proxy or information statements statement required to be filed by the Partnership or TE Products with the Commission pursuant in order to Sections 13(a), 13(c), 14 or 15(d) of comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the Representative, promptly after the Partnership receives notice thereof, (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units), (ii) of the issuance by the Commission of any stop order or any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any stop order and the suspension or loss of any qualification of the Securities for offering or sale and any loss or suspension of any exemption from any such qualification, to use commercially reasonable efforts to obtain the lifting or withdrawal thereof.
(e) To furnish such information as may be required and otherwise cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws notify you of such states and other jurisdictions (domestic or foreign) as the Representative may reasonably designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Units; provided, however, that the Partnership 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. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Unitsfiling.
(f) To furnish if necessary or make available appropriate, to the Representative, without charge, as many copies of the Prospectus and the Prospectus Supplement and any amendments or supplements thereto as the Representative reasonably requests for so long as the delivery of the Prospectus is required (whether physically or through compliance with file a registration statement pursuant to Rule 172 462(b) under the Securities Act of any similar rule), and the Partnership hereby consents to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be required) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise), such number of copies of the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements to any of the foregoing as the Representative may reasonably request.
(g) To to furnish or otherwise make available to you and, upon request, to each of the Representative during other Underwriters for a period of three years from the Term date of this Agreement the following documents, provided such documents are not otherwise publicly available via EDGAR: (i) copies of any reports or other communications which the Partnership Parxxxxxhip shall send to the holders of any class of its stockholders limited partnership interests or debt securities or shall from time to time publish or publicly disseminate and disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Partnership is listed, and to furnish to the Representative from time to time during the Term (iv) such other information as the Representative you may reasonably request regarding the Partnership TEPPCO Entities or its Subsidiariestheir subsidiaries, in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the Representative, as applicable; provided, however, that the Partnership and its Subsidiaries shall have no obligation to provide the Representative with any document filed on XXXXX or included on the Partnership’s Internet websitebecome available.
(h) If at to advise the Underwriters promptly of the happening of any event known to the Partnership or its subsidiaries within the time when during which a prospectus Prospectus relating to the Units is required (or, but for the provisions of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of under the Securities Act or otherwise)which, in the judgment of the Partnership, would require the making of any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement any Permitted Free Writing Prospectus or change in the Prospectus (i) then being used, or in the information incorporated therein by reference, so that such Registration Statement, Permitted Free Writing the Prospectus or the Prospectus, as the case may be, will would not include any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or then prevailingare made, not misleading or (ii) in order misleading, and, during such time, to comply with the requirements of the Securities Act or the Exchange Act, the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with furnish, at the Commission Partnership's expense, to the Underwriters promptly such amendment amendments or supplement supplements to such Prospectus as may be necessary to correct reflect any such untrue statement or omission or change and to comply with furnish to you a copy of such requirements, and, in the case of an proposed amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have supplement before filing any such amendment declared or become effective as soon as practicablesupplement with the Commission.
(i) To timely file such reports pursuant to the Exchange Act in order to make generally make available to holders of its security holders securities as soon as may be practicable but in no event later than the last day of the fifteenth full calendar month following the calendar quarter in which the Effective Date falls, and to deliver to you, an earnings statement of the Partnership (in a form complying with which will satisfy the provisions of Section 11(a) of the Securities Act and Act, including Rule 158 under the Securities Act) covering the twelve-month period beginning not later than the first day of the Partnership’s fiscal quarter next following Rules and Regulations) for a period of twelve months beginning after the “effective date” Effective Date of the Registration Statement (as defined in Rule 158158(c) of the Registration StatementSecurities Act) as soon as is reasonably practicable after the termination of such twelve-month period.
(j) To to furnish to you, upon request and without charge, two copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all financial statements, schedules and exhibits thereto and documents incorporated by reference therein), which are certified by an officer of the General Partner to be true and correct, and sufficient conformed copies of the foregoing (other than exhibits) for distribution to each of the other Underwriters.
(k) to furnish to you as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the TEPPCO Entities and their subsidiaries which have been read by the independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(b)hereof.
(l) to apply the net proceeds from the sale of the Units in the manner described in the Registration Statement or the Prospectus set forth under the caption “"Use of Proceeds.”
(k) Not to, and to cause its Subsidiaries not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing press releases " in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange ActProspectus.
(lm) Except as otherwise agreed between the Partnership and the Representative, to pay all costs, expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Underwriters except as set forth under Section 5 hereof and (iii), (iv) and (vi) below) in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act)Statement, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents Underwriters and to dealers (including costs of mailing and shipment), (Bii) the registration, issue issuance and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, an Agreement Among Underwriters, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof), and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to for the Agents in connection therewithUnderwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeUnderwriters and to dealers, (Dv) the any listing of the Units on the NYSE any securities exchange and any registration thereof under the Exchange Act, (Evi) any fees payable to investment rating agencies with respect to the Units, (vii) any filing for review of the public offering of the Units by FINRAthe NASD, (F) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (Gviii) the performance of the Partnership’s 's other obligations hereunder; hereunder and (Hix) the fees costs and disbursements expenses of counsel the TEPPCO Entities relating to the Representative in an amount not to exceed (a) $100,000 investor presentations on any "road show" undertaken in connection with the negotiation marketing of the offering of the Units, including, without limitation, expenses associated with the production of road show slides and execution graphics, fees and expenses of this Agreement (which shall include all matters required to be completed any consultants engaged in connection with the execution of this Agreement, including road show presentations with the preparation and filing prior approval of the Prospectus Supplement) Partnership, travel and (b) $15,000 in connection with each review lodging expenses of diligence materials the representatives and officers of the TEPPCO Entities and any such consultants, and the documents and other deliverables referred to in Section 6 hereof in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for cost of any transfer taxes on resale of Units by them, any costs and expenses associated with the sale and marketing of the Units and fees and disbursements of their counsel other than as specifically provided above or elsewhere in this Agreement.
(m) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material aircraft chartered in connection with the offer and sale of the Units, other than the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunderroad show.
(n) During each to furnish to you, before filing with the Commission subsequent to the Effective Date of the Registration Statement and during the period commencing on referred to in paragraph (e) above, a copy of any document proposed to be filed pursuant to Section 13, 14 or 15(d) of the date Exchange Act.
(o) to comply with all the provisions of each Transaction Notice and ending at any undertakings contained in the close of business on the Settlement Date for the related Agency TransactionRegistration Statement.
(p) not to sell, the Partnership shall provide the Representative and the applicable Agent notice as promptly as reasonably possible (andoffer or agree to sell, in any eventcontract to sell, at least four (4) business days) before it offers or contracts to sell or exchangehypothecate, sellspledge, exchanges, grants grant any option to sell or otherwise disposes of dispose of, directly or indirectly (or enter into any Units transaction which is designed to, or securities convertible into or exchangeable for Unitsmight reasonably be expected to, warrants or any rights to purchase or acquire Units; provided, that such notice shall not be required with respect to (i) any Units issued by the Partnership upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equity-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to result in the Prospectusdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise)), (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Common Units or securities convertible into or exchangeable or exercisable for Common Units in connection with acquisitions or warrants or other rights to purchase Common Units or any other securities of oil the Partnership that are substantially similar to Units, or natural gas assets file or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent cause to eliminate fractional securities. Any lock-up provisions relating to be declared effective a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 registration statement under the Securities Act.
(p) In Act relating to the case offer and sale of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or other rights to purchase Units or any other securities of the Partnership that are not listed on substantially similar to Common Units or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the NYSEmeaning of Section 16 of the Exchange Act, the Partnership will use its best efforts or publicly announce an intention to effect any such transaction for a period of 90 days after the listing date hereof (the "Lock-Up Period"), without the prior written consent of Salomon Smith Barney Inc., except for (i) the registration of the Units on such exchange as and when required by Commxx Xxxxx xxx txx xxxes to the Underwriters pursuant to this Agreement, (ii) issuances of Units upon the exercise of options or warrants disclosed as outstanding in the Registration Statement and the Prospectus, and (iii) the issuance of employee options not exercisable during the Lock-Up Period pursuant to option plans described in the Registration Statement and the Prospectus.
(q) That it consents not, at any time, directly or indirectly, take any action intended, or which might reasonably be expected, to the Agents trading in the Units for the Agents’ own account and for the account of its clients at the same time as sales cause or result in, which will constitute, stabilization of the price of the Common Units occur pursuant to this Agreementfacilitate the sale or resale of any of the Units.
(r) to timely file any financial statements required by Rule 3-05(b)(2) of Regulation S-X.
Appears in 1 contract
Certain Covenants of the Partnership. The Partnership hereby agrees with each Agent as followsKCA:
(a) For so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, before using or filing any Permitted Free Writing Prospectus and before Before amending or supplementing the Registration Statement or the Prospectus (in each case, case other than due to the filing of an Incorporated Document Document), or an amendment or supplement during any period of time in which a Prospectus relating solely to the issuance or offering of securities other than Units is required to be delivered under the Units)Act, (i) to furnish to the Representative KCA a copy of each such proposed Permitted Free Writing Prospectus, amendment or supplement within a reasonable period of time before filing any such amendment or supplement with the Commission, and (ii) that the Partnership shall to not use or file any such Permitted Free Writing Prospectus use, or file any such proposed amendment or supplement to which the Representative KCA reasonably objects, unless the Partnership’s legal counsel has advised the Partnership that filing such document is required by law.
(b) To prepare a the Prospectus Supplement, with respect to any Units sold by the Partnership pursuant to this Agreement in a form previously approved by the Representative Supplement and to file such Prospectus Supplement pursuant to Rule 424(b) under the Securities Act (to, and within the time periods required by by, Rule 424(b) and Rules 430A, 430B or 430C under the Securities Act); to file any Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; Act and to provide copies of the Prospectus and such Prospectus Supplement and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed and available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto (collectively, “XXXXX”)) to the Representative KCA via e-mail in “.pdf” format on such filing date to an e-mail account designated by the Representative; KCA and, at the RepresentativeKCA’s reasonable request, to also furnish copies of the Prospectus and such Prospectus Supplement to each exchange or market on which sales were effected the Exchange as may be required by the rules or regulations of such exchange or marketthe Exchange.
(c) To timely file promptly all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with the offering or sale of the Units, and during such same period to advise the RepresentativeKCA, promptly after the Partnership receives notice thereof, of: (i) of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus, any Permitted Free Writing Prospectus or any amended Prospectus has been filed with the Commission (in each case, other than due to the filing of an Incorporated Document or an amendment or supplement relating solely to the issuance or offering of securities other than the Units)Commission, (ii) of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Units or the initiation or threatening of any proceeding for that purpose, purpose or pursuant to Section 8A of the Securities Act, (iii) of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, (iv) of any request by the Commission for the amendment of the Registration Statement or the amendment or supplementation of the Prospectus or for additional information, ; and (v) of the occurrence of any event as a result of which the Prospectus or any Permitted Free Writing Prospectus as then amended or supplemented includes would include any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Basic Prospectus or any such Permitted Free Writing the Prospectus is delivered to a purchaser, not misleading and (vi) of the receipt by the Partnership of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment theretomisleading.
(d) In the event of the issuance of any such stop order and the suspension or loss of any qualification such order preventing or suspending the use of the Securities for offering Prospectus or sale and any loss or suspension of any exemption from suspending any such qualificationqualification referred to above, to use promptly its commercially reasonable efforts to obtain the lifting or withdrawal thereofits withdrawal.
(e) To furnish such information as may be lawfully required and otherwise to cooperate in qualifying the Units for offering and sale or obtaining an exemption for the Units to be offered and sold, under the applicable securities or blue sky laws of such states and other jurisdictions (domestic or foreign) as the Representative KCA may reasonably designate and to maintain will file and make such qualifications and exemptions in effect for so long statements or reports as required for the distribution of the Unitsare or may be reasonably necessary; provided, however, provided that the Partnership shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation or as corporation, become a dealer in securities of securities, or become subject to taxation in, or to consent to the service of process under the laws of, any such state where the Partnership is not presently qualified; and to promptly advise KCA of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect the initiation of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Units have been so qualified or exempt, the Partnership will file proceeding for such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Unitspurpose.
(f) To furnish or make available to the RepresentativeKCA at its offices in New York, New York (or as designated by KCA), without charge, as soon as practicable after the date of this Agreement, and thereafter from time to time to furnish to KCA, as many copies of the Prospectus and (or of the Prospectus Supplement and as amended or supplemented if the Partnership shall have made any amendments or supplements thereto and documents incorporated by reference therein after the effective date of the Registration Statement) as the Representative KCA may reasonably requests request for so long as the delivery of the Prospectus a prospectus is required (whether physically or through compliance with Rule 172 under the Securities Act of or any similar rule); and for so long as this Agreement is in effect; and during each such period, and the Partnership hereby consents will prepare and file promptly, subject to the use of such copies for purposes permitted by the Securities Act. The Partnership will furnish or make available to the Representative, without charge, during the period when the Prospectus is required (or, but for the provisions of Rule 172, would be requiredSection 5(a) to be delivered by applicable law (whether to meet the request of purchasers pursuant to Rule 173(d) or otherwise)hereof, such number of copies of amendment or amendments to the Registration Statement, any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements the Prospectus Supplement as may be necessary to any comply with the requirements of Section 10(a)(3) of the foregoing as the Representative may reasonably requestAct.
(g) To furnish or make available to the Representative KCA during the Term term of this Agreement and for a period of two years thereafter (i) copies of any reports or other communications which the Partnership shall send to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of all annual, quarterly annual and current reports filed with the Commission on Forms 10-K, 10-Q K and 8-K, or such other similar form as may be designated by the Commission, and to furnish to the Representative KCA from time to time during the Term term of this Agreement such other information as the Representative KCA may reasonably request regarding the Partnership or its Subsidiaries, the other Legacy Parties in each case as soon as practicable following the date at which such reports, communications, documents or information becomes available or promptly upon the request of the RepresentativeKCA, as applicable; provided, however, that so long as the Partnership is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and its Subsidiaries shall have no obligation is timely filing reports with the Commission on XXXXX, it is not required to provide the Representative with any document filed on XXXXX furnish such reports or included on the Partnership’s Internet websitestatements to KCA.
(h) If If, at any time when a prospectus is required (or, but for during the provisions term of Rule 172 of the Securities Act, would be required) by the applicable law to be delivered in connection with sales of the Units (whether to meet the request of purchasers pursuant to Rule 173(d) of the Securities Act or otherwise)this Agreement, any event shall occur or condition shall exist as a result of which it is necessary in the reasonable opinion of counsel for KCA or counsel for the Partnership, to amend the Registration Statement or further amend or supplement any Permitted Free Writing Prospectus or the Prospectus (i) so as then amended or supplemented in order that such Registration Statement, Permitted Free Writing the Prospectus or the Prospectus, as the case may be, will not include any an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were made existing at the time the Prospectus is delivered to a purchaser, or then prevailingif it shall be necessary, not misleading in the reasonable opinion of either such counsel, to amend or (ii) supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Securities Act or the Exchange Act, immediate notice shall be given, and confirmed in writing, to KCA to cease the solicitation of offers to purchase the Units, and the Partnership will promptly notify the Representative of such event or condition and of its intention to file such amendment or supplement and will promptly prepare and file with the Commission such amendment or supplement supplement, whether by filing documents pursuant to the Act, the Exchange Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and, in the case of an amendment or post-effective amendment to the Registration Statement, the Partnership will use its commercially reasonable efforts to have such amendment declared or become effective as soon as practicable.
(i) To timely file such reports pursuant to the Exchange Act in order to generally make available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in a form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act) covering the twelveeach 12-month period beginning beginning, in each case, not later than the first day of the Partnership’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of the Registration StatementStatement with respect to each sale of Units.
(j) To furnish to KCA one conformed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including all exhibits thereto and all documents incorporated by reference therein.
(k) To apply the net proceeds from the sale of the Units in the manner described in the Registration Statement Statement, any Basic Prospectus or the Prospectus under the caption “Use of Proceeds.”
(kl) Not toThe Partnership will not, and to will cause its Subsidiaries the other Legacy Parties not to, take, directly or indirectly, any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Units; provided that nothing herein shall prevent the Partnership from filing or submitting reports under the Exchange Act or issuing the issuance of press releases in the ordinary course of business or bidding for or purchasing Units in accordance with Rule 10b-18 under the Exchange Actbusiness.
(lm) Except as otherwise agreed between the Partnership and the RepresentativeKCA, to pay all costs, expenses, fees and taxes in connection with (Ai) the preparation and filing of the Registration Statement (including registration fees pursuant to Rule 456(b)(1)(i) under the Securities Act)Statement, any Basic Prospectus, the Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agents KCA and to dealers (including costs of mailing and shipment), (Bii) the registration, issue and delivery of the Units, (Ciii) the producing, word processing and/or printing of this Agreement, any powers of attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to KCA (including costs of mailing and shipment), (iv) the qualification of the Units for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the reasonable legal fees and filing fees and other disbursements of counsel to the Agents for KCA in connection therewith) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the RepresentativeKCA, (Dv) the listing of the Units on the NYSE Exchange and any registration thereof under the Exchange Act, (Evi) any filing for review of the public offering of the Units by FINRA, (Fvii) the fees and disbursements of counsel to the Partnership and of the Partnership’s independent registered public accounting firm; (G) the performance of the Partnership’s other obligations hereunder; and (H) the fees and disbursements of counsel to the Representative KCA (in an amount not to exceed (a$100,000) $100,000 in connection with the negotiation and execution completion of this Agreement (which shall include all matters required to be completed in connection with as conditions precedent to the execution parties agreeing to and executing the initial Transaction hereunder), (viii) the documented, reasonable fees and disbursements of this Agreement, including the preparation and filing of the Prospectus Supplement) and (b) $15,000 outside counsel to KCA in connection with each review of diligence materials and the documents “comfort” letters and other deliverables documents referred to in Section 6 hereof 7(b) hereof, other than the initial such review, up to a maximum of $5,000 per review for all such fees and disbursements and further subject to the overall cap of $100,000 set forth in connection with each Bring-Down Delivery Date; provided that the Agents shall be responsible for clause (vii), and (ix) any transfer taxes on resale of Units by them, any other costs and expenses associated with the sale and marketing of the Units and fees and disbursements Partnership incident to the performance of their counsel the Partnership’s other than as specifically provided above or elsewhere in this Agreementobligations hereunder.
(mn) With respect to the offering(s) contemplated hereby, that the Partnership will not offer Units or any other securities convertible into or exchangeable or exercisable for Units in a manner in violation of the Securities Act; the Partnership will not distribute any offering material in connection with the offer and sale of the Units, other than the Registration Statement, the any Basic Prospectus or any Permitted Free Writing the Prospectus and other materials permitted by the Securities Act or the rules and regulations promulgated thereunder.
(no) During each period commencing on beginning with the date of each the Transaction Notice and ending at after the close of business on the Settlement Purchase Date for the related Agency Transaction, the Partnership shall provide will not (i) offer, pledge, announce the Representative and the applicable Agent notice as promptly as reasonably possible (andintention to sell, in any eventsell, at least four (4) business days) before it offers or contracts contract to sell, sell or exchange, sells, exchanges, grants any option or contract to sell purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise disposes transfer or dispose of, directly or indirectly, any of any its Units or any securities convertible into or exercisable or exchangeable for Unitssuch units or (ii) enter into any swap or other agreement that transfers, warrants in whole or in part, any rights to purchase or acquire Units; providedof the economic consequences of ownership of such units, that whether any such notice shall not be required with respect to transaction described in clause (i) or (ii) above is to be settled by delivery of units or such other securities, in cash or otherwise, without the prior written consent of KCA, other than the Units to be sold hereunder and any Units issued by of the Partnership issued upon the exercise of an option or warrant or the conversion, redemption or exchange of a security outstanding at the time such Transaction Notice is delivered, (ii) any Units or other equityoptions granted under existing employee stock-based awards issued or options to purchase Units granted pursuant to employee benefit plans of the Partnership referred to in the Prospectus, (iii) any Units, restricted Units or phantom Units issued pursuant to any non-employee equity incentive plan, dividend reinvestment plan or Unit purchase plan existing at the time such Transaction Notice is delivered, (iv) any Units or securities convertible into or exchangeable or exercisable for Units in connection with acquisitions of oil or natural gas assets or exploration and production companies or (v) any Units sold by the Partnership’s transfer agent to eliminate fractional securities. Any lock-up provisions relating to a Principal Transaction shall be set forth in the applicable Terms Agreement.
(o) To retain, pursuant to reasonable procedures developed in good faith, copies of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Actcompensation plans.
(p) In the case of any Units that are not listed on the NYSE, the Partnership will To use its best efforts to effect file any notification that may be required by the listing Exchange in connection with the sale of the Units on such exchange as and when required by this AgreementUnits.
(q) That it consents to the Agents KCA trading in the Units for the Agents’ KCA’s own account and for the account of its clients at the same time as sales of the Units occur pursuant to this Agreement.
(r) To use its best efforts to satisfy, or cause to be satisfied, the conditions set forth in Section 6 hereof on or in respect of each date specified in Section 7(b) hereunder.
(s) To advise KCA promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect any opinion, certificate, letter or other document provided to KCA pursuant to this Agreement.
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