Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant with each Initial Purchaser as follows: (a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of the Final Memorandum and any supplements and amendments thereto as you may reasonably request. (b) Before amending or supplementing either Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object. (c) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law. (d) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request. (e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make. (f) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities. (g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. (h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act. (i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market. (j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S. (k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them. (l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 9 contracts
Samples: Purchase Agreement (1115650 Alberta LTD), Purchase Agreement (Harvest Breeze Trust No. 1), Purchase Agreement (1115638 Alberta LTD)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any “written communication” (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act that is incorporated by reference in the Pricing Disclosure Package or the Final Memorandum unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall have given their consent, such consent not to be unreasonably withheld or delayed; provided that such consent shall not be necessary if the Company shall have been advised by counsel that the filing of such report is required by applicable law. The Company will promptly advise the Initial Purchasers when any document filed under the Exchange Act that is incorporated by reference in the Pricing Disclosure Package or the Final Memorandum shall have been filed with the Commission on or prior to the Closing Date. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, neither the Company nor any of the Guarantors shall be required to furnish qualify as a foreign corporation or other organization or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities, any event occurs or information becomes known to the Company as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial PurchasersClosing Date, (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package or any Issuer Written Communication so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Final Memorandum Pricing Disclosure Package or any Issuer Written Communication as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) None of the TrustCompany, its Affiliates the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, engage in any form of “general solicitation solicitation” or “general advertising advertising” (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(h) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities Notes to be designated PORTAL securities in accordance with the rules eligible for clearance and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Marketsettlement through The Depository Trust Company.
(j) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of BofA Securities, Inc., neither the Company nor any Guarantor will offer, sell, contract to sell or otherwise dispose of, except as provided hereunder or in the Registration Rights Agreement, any securities of the Company or any Guarantor (or guaranteed by the Company or any Guarantor) that are substantially similar to the Securities (other than Exchange Securities).
(k) In connection with Securities offered and sold in an “off-shore transaction” (as defined in Regulation S), the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(l) None of the TrustCompany, its Affiliates the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S..
(km) During the For a period of two years after one year (calculated in accordance with paragraph (d) of Rule 144 under the Act) following the Closing Date, none of the Trust will notCompany, and will not permit the Guarantors or any of its their Affiliates will sell any such Securities except pursuant to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M an effective registration statement under the Exchange Act in connection with the distribution of the Securities contemplated herebyAct.
Appears in 2 contracts
Samples: Purchase Agreement (Griffon Corp), Purchase Agreement (Griffon Corp)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that nothing contained herein shall require the Company to qualify to do business in any jurisdiction, to execute a general consent to service of process in any state or to subject itself to taxation in any jurisdiction in which it is otherwise not so subject.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including (a) filing fees and (b) the reasonable fees and disbursements of counsel for the Initial Purchasers of $15,000 in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALany appropriate market system, (ivvi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vvii) the cost of the preparation, issuance and delivery of the Securities, (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other cost and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section, provided however that any costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of or the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantorspresentations, travel and lodging expenses of the representatives Representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, shall be paid or caused to be paid by the Initial Purchasers. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of Neither the Trust, its Affiliates or Company nor the Guarantors nor any person acting on its or their behalf (other than the Initial Purchasers) Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not To furnish you with any proposed General Solicitation to solicit be made by the Company or the Guarantors or on their behalf before its use, and not to make or use any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Actproposed General Solicitation without your prior written consent.
(hj) While any of the Securities or the Underlying Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is Company or the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years one year after the Closing Date or any Option Closing Date, if later, the Trust will not, Company and the Guarantors will not permit any of its Affiliates be, nor will they become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to resell any be registered under Section 8 of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themInvestment Company Act.
(l) To promptly notify the Initial Purchasers if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the Securities Act and (ii) completion of the Restricted Period referred to in this Section 6.
(m) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(n) The Company will reserve and keep available at all times, free of preemptive rights or similar rights, shares of Class A common stock for the purpose of enabling the Company to satisfy all obligations to deliver the Underlying Securities upon exchange of the Securities. The Company will use its best efforts to cause the Underlying Securities to be listed on the NYSE. NRG Yield LLC will also reserve and keep available at all times, free of preemptive rights or similar rights, Class A units for the purpose of being issued to the Company pursuant to the terms of the Intercompany Agreements. The Company and the Guarantors also agree that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers, they and their directors and executive officers will not, during the period ending 60 days after the date of the Final Memorandum ( the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Class A common stock or any securities convertible into or exercisable or exchangeable for Class A common stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Class A common stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Class A common stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the sale of the Securities under this Agreement, (b) the issuance by the Company of any shares of Class A common stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Initial Purchasers have been advised in writing, or (c) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Class A common stock, provided that (i) such plan does not provide for the transfer of Class A common stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Class A common stock may be made under such plan during the Restricted Period.
Appears in 2 contracts
Samples: Purchase Agreement (NRG Yield, Inc.), Purchase Agreement (NRG Yield, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents referred to therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Offered Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Offered Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial PurchasersPurchasers and to such dealers as the Representative may designate, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) To use the proceeds from the offer and sale of the Offered Securities in the manner described in the Time of Sale Memorandum and the Final Memorandum under the caption “Use of Proceeds.”
(h) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its their respective obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Offered Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the preparation, issuance and delivery of the Offered Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Offered Securities under state securities laws and all expenses in connection with the qualification of the Offered Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Offered Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (ivv) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vvi) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (vii) all other cost and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Offered Securities by them and any advertising expenses connected with any offers they may make.
(fi) None Except in connection with the Exchange Offer or the filing of the TrustShelf Registration Statement, its Affiliates or neither the Company nor any person acting on its or their behalf (other than the Initial Purchasers) Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Offered Securities in a manner which would require the registration under the Securities Act of the Offered Securities.
(gj) Not Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, not to solicit any offer to buy or offer or sell the Offered Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hk) While any of the Offered Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Offered Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(il) If requested by youThe Company agrees that the Initial Purchasers may provide copies of the Preliminary Memorandum, any Additional Written Offering Communication, the Final Memorandum and any other agreements or documents relating thereto, including without limitation, the Indenture, to use their commercially reasonable efforts Xtract Research LLC (“Xtract”), following completion of the offering, for inclusion in an online research service sponsored by Xtract, access to permit the Securities which shall be restricted by Xtract to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL MarketQIBs (as defined below).
(jm) None Except in connection with the Exchange Offer or the filing of the TrustShelf Registration Statement, none of the Company, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Offered Securities, and the Trust, Company and its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(kn) During the period of two years one year after the Closing Date, Date the Trust Company will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Offered Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under . The Company also agrees that, without the Exchange Act in connection with the distribution prior written consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers, it will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Offered Securities contemplated hereby(other than the sale of the Offered Securities under this Agreement).
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and each of the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Road Show Slides and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Representatives shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Representatives shall have given their consent, which consent shall not be unreasonably conditioned, delayed or withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and each Guarantor will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Company or any Guarantor shall be required to furnish qualify as a foreign corporation or other entity or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) (i) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold sale by the Initial PurchasersPurchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and the Final Memorandum to comply with applicable law, the Company will promptly notify the Representatives thereof and will prepare, at the expense of the Company, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (ii) if at any time prior to the Closing Date, (A) any event shall occur or condition shall exist as a result of which it is the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (B) it is necessary to amend or supplement the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance offering and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed; provided, however, that any such reports, financial statements or other communications that are filed with the Commission and are generally available to the public on the Commission’s website shall be deemed to have been furnished to the Initial Purchasers.
(g) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the offer and sale of the Securities.
(gh) Not to solicit None of the Company or any offer to buy or offer or sell the Securities by means of its Affiliates will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under D) in connection with the offering of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hi) While For so long as any of the Securities remain "restricted securities" outstanding within the meaning of Rule 144(a)(3) under the Securities Act, to the Company will make availableavailable at its expense, upon request, to any seller holder of such Securities the Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by you, to The Company will use their commercially reasonable its best efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through DTC.
(k) During the period beginning on the date hereof and continuing to the date that is 60 days after the date of this Agreement, without the prior written consent of Deutsche Bank Securities Inc., the Company will not directly or indirectly, sell, offer, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the Securities.
(l) As long as there are any Securities outstanding, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Act) to resell any of the Securities that have been reacquired by any of them, unless upon such resale such Security will no longer be a “restricted security” as defined in Rule 144.
(m) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S), the Company will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading in the PORTAL Marketform of definitive securities.
(jn) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Samples: Purchase Agreement (LGI Homes, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantor covenant with to each Initial Purchaser as follows:
(a) To furnish to you the Representatives in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the second business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c8(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you the Representatives may reasonably request.;
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you the Representatives a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you the Representatives reasonably object., except as may be required by applicable law;
(c) To furnish to the Representatives a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company or the Guarantor and not to use or refer to any proposed Additional Written Offering Communication to which the Representatives reasonably object;
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law;
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expenseexpense (unless such amendment or supplement shall be made more than six months after the date of this Agreement, in which case at the sole expense of the Initial Purchasers), to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.;
(df) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Representatives shall reasonably request.request and to continue such qualifications, if any, in effect so long as required for the initial resale of the Securities by the Initial Purchasers; provided that neither the Company nor the Guarantor shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or subject itself to taxation in a jurisdiction in which it is not otherwise subject to tax;
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, includingfollowing: (i) the fees, disbursements and expenses of the Company's counsel and accountants for the Company and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants Guarantor in connection with the issuance preparation, printing and sale of the Securities and all other fees or expenses in connection with the preparation filing of each Memorandum Memorandum, and all amendments and supplements thereto, including all printing costs associated therewith, thereto and the mailing and delivering of copies thereof to the Initial PurchasersPurchasers and dealers; (ii) the cost of printing or producing this Agreement, the Indenture, the Registration Rights Agreement any Blue Sky survey and any other documents in connection with the quantities herein above specifiedoffering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offer offering and sale under state securities laws as provided in Section 6(d8(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, survey; (iiiv) any reasonable fees charged by securities rating agencies services for the rating of the Securities, ; (iiiv) the cost of preparing the Securities; (vi) the fees and expenses, if any, incurred expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for any Trustee in connection with the admission of Indenture and the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee Securities; and (vvii) the all other costs and expenses incident to the performance of the Company and the Guarantors relating to investor presentations on any "road show" undertaken their obligations hereunder which are not otherwise specifically provided for in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road showthis Section. It is understood, however, that that, except as provided in this Section, Section 8, 11 and the last paragraph of Section 1013 hereof, the Initial Purchasers will pay all of their own costs and expenses, including the fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them them, and any advertising expenses connected with any offers they may make.;
(fh) None Neither the Company, the Guarantor nor any of the Trust, its their respective Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.;
(gi) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.;
(hj) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.;
(ik) If requested by youDuring the period of one year after the Closing Date, to use their commercially reasonable efforts to permit neither the Securities Company or the Guarantor will be, or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be designated PORTAL securities in accordance with registered under Section 8 of the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.Investment Company Act;
(jl) None of the TrustCompany, its the Guarantor, their respective Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the TrustCompany, its the Guarantor and their Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.S;
(km) During the period from the Closing Date to the earlier of two years (i) one year after the Closing DateDate and (ii) the date of effectiveness of a registration statement as contemplated in the Registration Rights Agreement, neither the Trust will notCompany nor the Guarantor will, and will not permit any of its Affiliates to their respective “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by them, except for Securities purchased by the Company or the Guarantor or any of them.their respective affiliates and resold in a transaction registered under the Securities Act;
(ln) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby;
(o) The Company shall use the proceeds from the sale of the Securities in the manner described in the Times of Sale Memorandum and the Final Memorandum; and
(p) During the period of one year hereafter, the Company and the Guarantor will furnish to the Initial Purchasers, as soon as available, a copy of each of the reports, notices or communications sent to securityholders, if not available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system. The Company also agrees that, without the prior written consent of the Representatives on behalf of the Initial Purchasers, it will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities (other than the sale of the Securities under this Agreement).
Appears in 1 contract
Samples: Purchase Agreement (AbbVie Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date (such date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c“Distribution Completion Date”), as many copies of the Company will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall have given their consent (such consent not to be unreasonably withheld, conditioned or delayed). The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities and the Guarantees; provided, however, that in connection therewith, none of the Company and the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, Closing Date (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers such number of copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Representative may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and Notes substantially consistent in all other fees or expenses in connection material respects with the preparation description set forth under “Use of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Proceeds” in the Pricing Disclosure Package and the delivering Final Memorandum.
(f) Prior to the Distribution Completion Date, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Securities and, upon request, copies thereof of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, in the quantities herein above specifiedas soon as they have been prepared, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Pricing Disclosure Package and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, (1) engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or (2) engage in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hj) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ik) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through The Depository Trust Company.
(l) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of the Representative, the Company and the Guarantors will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of any of the Company and the Guarantors (or guaranteed by any of the Company and the Guarantors) that are substantially similar to the Securities.
(m) In connection with Securities offered and sold in an off shore transaction (as defined in Regulation S), the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading (including any related Guarantees) in the PORTAL Marketform of definitive securities.
(jn) None of the Trust, its Affiliates Company and the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S..
(ko) During the For a period of two years after one year (calculated in accordance with paragraph (d) of Rule 144 under the Closing DateAct) following the date any Securities are acquired by the Company or any of its affiliates (as defined in Rule 144 under the Act), the Trust Company will not, and will not permit such affiliates to, sell any of its Affiliates to resell any of such Securities except in a transaction registered under the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themAct.
(lp) Not With respect to take any action prohibited by Regulation M under the Exchange Act 2019 Notes that remain outstanding and are not repurchased in connection with the distribution Tender Offer on the Closing Date, within two business days of the Securities contemplated herebyClosing Date, the Company shall deliver to the trustee under the 2019 Notes Indenture an irrevocable notice of redemption in accordance with the provisions of the 2019 Notes Indenture (a copy of which shall be delivered to the Initial Purchasers).
Appears in 1 contract
Samples: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each Initial Purchaser as followsthat:
(a) To As promptly as practicable following the Time of Sale and in any event not later than the second business day following the date hereof, the Company will prepare and deliver to the Initial Purchasers the Final Memorandum, which shall consist of the Preliminary Memorandum as modified only by the information contained in the Pricing Supplement. The Company will not amend or supplement the Preliminary Memorandum or the Pricing Supplement. The Company will not amend or supplement the Final Memorandum prior to the Closing Date unless the Representative shall previously has been furnished a copy of the proposed amendment or supplement at least two business days prior to the proposed use or filing, and shall not have objected to such amendment or supplement. Before making, preparing, using, authorizing, approving or distributing any Company Additional Written Communication, the Company will furnish to you in New York Citythe Representative a copy of such written communication for review and will not make, prepare, use, authorize, approve or distribute any such written communication to which the Representative reasonably objects.
(b) The Company will not amend or supplement the Pricing Disclosure Package or the Final Memorandum including by filing documents under the Exchange Act which are incorporated by reference therein prior to the completion of the distribution of the Securities by the Initial Purchasers without the prior written consent of the Initial Purchasers, which consent will not be unreasonably withheld.
(c) The Company agrees to furnish the Initial Purchasers, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of the Pricing Disclosure Package and the Final Memorandum and any amendments and supplements and amendments thereto as you may they shall reasonably request.
(bd) Before amending or supplementing either Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use At any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and time prior to the date on which all completion of the distribution of the Securities shall have been sold by the Initial Purchasers, if any event shall occur or condition exist occurs as a result of which it is the Offering Memorandum, as then amended or supplemented, or any Company Additional Written Communication (taken together with the Offering Memorandum) would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Initial Purchasers, if it is should be necessary to amend or supplement the Final Offering Memorandum or any Company Additional Written Communication (taken together with the Offering Memorandum) to comply with applicable law, forthwith the Company will promptly (i) notify the Initial Purchasers of the same; (ii) subject to the requirements of paragraph (b) of this Section 5, prepare and furnishprovide to the Initial Purchasers pursuant to paragraph (a) of this Section 5, at its own expense, an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented or amended Offering Memorandum to the Initial Purchasers and Counsel for the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements without charge in the Final Memorandum such quantities as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, may be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable lawreasonably requested.
(de) To endeavor to The Company will (i) qualify the Securities Notes and the Note Guarantees for offer and sale by the Initial Purchasers under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
the Initial Purchasers may designate and (eii) Whether or not will maintain such qualifications for so long as required for the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to by the Initial Purchasers; provided that the Company will not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject. The Company will promptly advise the quantities herein above specified, all expenses in connection Initial Purchasers of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and any jurisdiction or the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky initiation or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses threatening of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any proceeding for such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makepurpose.
(f) None At any time prior to the completion of the Trustdistribution of the Securities by the Initial Purchasers, the Company, whenever it, the Guarantors or any of their subsidiaries publishes or makes available to the public (by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) any information that would reasonably be expected to be material in the context of the issuance of the Securities under this Agreement, shall promptly notify the Initial Purchasers as to the nature of such information or event. The Company will likewise notify the Initial Purchasers of (i) any decrease in the rating of the Securities or any other debt securities of the Company by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities Act) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Securities or such other debt securities, as soon as practicable after the Company becomes aware of any such decrease, notice or public announcement. For so long as the Securities are outstanding, the Company will also deliver to the Initial Purchasers, as soon as available and without request, copies of its yearly and quarterly filings under the Exchange Act.
(g) The Company will not, and will not permit any of its Affiliates to, resell any of the Securities that have been acquired by any of them, other than pursuant to an effective registration statement under the Securities Act or in accordance with Rule 144 under the Securities Act.
(h) Except as contemplated in the Registration Rights Agreement, none of the Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial PurchasersPurchasers or any of their respective Affiliates, as to whom the Company and the Guarantors make no covenant) will sellwill, offer for sale directly or indirectly, make offers or sales of any security, or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which security, under circumstances that would require the registration under of the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial PurchasersPurchasers or any of their respective Affiliates, as to whom the Company and the Guarantors make no covenant) will engage in any directed selling efforts form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities.
(j) So long as any of the Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, at any time that the Company is not then subject to Section 13 or 15(d) of the Exchange Act, the Company will provide at its expense to each holder of the Securities and to each prospective purchaser (as that term is defined in Regulation Sdesignated by such holder) with respect to of the Securities, upon the request of such holder or prospective purchaser in connection with a sale of the Securities, any information required to be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be for the benefit of the holders, and the Trustprospective purchasers designated by such holders from time to time, of the Securities.)
(k) The Company will cooperate with the Initial Purchasers and use its best efforts to permit the Securities to be eligible for clearance and settlement through the facilities of The Depository Trust Company (the “Depositary”).
(l) The Company will apply the net proceeds from the sale of the Securities as set forth under “Use of Proceeds” in the Offering Memorandum.
(m) Until completion of the distribution, neither the Company nor any of its Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(n) For so long as any Securities are outstanding, each of the Company, the Guarantors and each their subsidiaries will conduct its operations in a manner that will not subject the Company, the Guarantors or any such subsidiary to registration as an investment company under the Investment Company Act.
(o) Neither the Company nor any of its Affiliates nor any person acting on its or their behalf (other than the Initial PurchasersPurchasers or their agents, as to which the Company makes no covenant) will engage in any directed selling efforts with respect to the Securities, and each of them will comply with the offering restrictions requirement of Regulation S. Terms used in this paragraph have the meanings given them by Regulation S.
(kp) During Each Note will bear a legend substantially to the period of two years after following effect until such legend shall no longer be necessary or advisable because the Closing DateSecurities are no longer subject to the restrictions on transfer described therein: “THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, the Trust AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY EVIDENCED HEREBY.”
(q) The Company will not, and will not permit directly or indirectly, offer, sell, contract to sell or otherwise dispose of any of its Affiliates to resell any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any (other than the Securities offered pursuant to this Agreement) for a period of them180 days after the date hereof, without the prior written consent of Banc of America Securities LLC.
(lr) Not The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to take any action prohibited by Regulation M under the Exchange Act in connection Company with respect to the distribution offering of the Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, no Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Company with respect thereto. Any review by the Initial Purchasers of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Company.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date (such date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c“Distribution Completion Date”), as many copies of the Company will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Representative shall have given its consent (such consent not to be unreasonably withheld, conditioned or delayed). The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities and the Guarantees; provided, however, that in connection therewith, none of the Company and the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, Closing Date (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be {N4389313.2} misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers electronic copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Representative may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and Notes substantially consistent in all other fees or expenses in connection material respects with the preparation description set forth under “Use of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Proceeds” in the Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) Prior to the Distribution Completion Date, the Company will furnish to the Initial Purchasers electronic copies of all written reports furnished by the Company to the Trustee or to the holders of the Securities and, upon request, electronic copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
(g) [intentionally omitted].
(h) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, (1) engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or (2) engage in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hj) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ik) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through The Depository Trust Company.
(l) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of the Representative, the Company and the Guarantors will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of any of the Company and the Guarantors (or guaranteed by any of the Company and the Guarantors) that are substantially similar to the Securities.
(m) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S), the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading (including any related Guarantees) in the PORTAL Market.form of definitive securities. {N4389313.2}
(jn) None of the Trust, its Affiliates Company and the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S..
(ko) During the For a period of two years after one year (calculated in accordance with paragraph (d) of Rule 144 under the Closing DateAct) following the date any Securities are acquired by the Company or any of its affiliates (as defined in Rule 144 under the Act), the Trust Company will not, and will not permit such affiliates to, sell any of its Affiliates to resell any of the such Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M except in a transaction registered under the Exchange Act in connection with the distribution of the Securities contemplated herebyAct.
Appears in 1 contract
Samples: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Covenants of the Company and the Guarantors. In further consideration Each of the agreements of the Initial Purchasers contained in this Agreement, the Company and ------------------------------------------- the Guarantors, Guarantors jointly and severally, covenant severally covenants and agrees with each the Initial Purchaser as followsthat:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on The Company and the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of Guarantors will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchaser shall not have given their consent, which will not be unreasonably withheld. The Company and the Guarantors will promptly, upon the reasonable request of the Initial Purchaser or counsel for the Initial Purchaser, make any amendments or supplements and amendments thereto as you to the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchaser.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchaser in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of such jurisdictions as the Initial Purchaser may reasonably designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Notes; provided, however, that in connection therewith, neither of the Company nor -------- ------- any Guarantor shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold initial resale by the Initial PurchasersPurchaser of the Notes, any event shall occur or condition exist occurs as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company and furnishthe Guarantors will promptly notify the Initial Purchaser thereof and will prepare, at its own their expense, an amendment or supplement to the Initial Purchasers, either amendments Fin- al Memorandum that corrects such statement or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended omission or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable laweffects such compliance.
(d) To endeavor The Company and the Guarantors will, without charge, provide to qualify the Securities Initial Purchaser and to counsel for offer and sale under the securities Initial Purchaser as many copies of the Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchaser may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation Notes as set forth under "Use of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, Proceeds" in the quantities herein above specifiedFinal Memorandum.
(f) For and during the period ending on the date no Notes are outstanding, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating will furnish to investor presentations on the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company or the Guarantors to the Trustee or the holders of the Notes and, as soon as available, copies of any "road show" undertaken in connection reports or financial statements furnished to or filed by the Company or the Guarantors with the marketing Commission or any national securities exchange on which any class of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval securities of the Company and or the GuarantorsGuarantors may be listed.
(g) Prior to the Closing Date, travel and lodging expenses the Company will furnish to the Initial Purchaser, as soon as they have been prepared, a copy of the representatives and officers any unaudited interim financial statements of the Company and for any period subsequent to the Guarantors and any such consultants, and period covered by the cost of any aircraft chartered most recent financial statements appearing in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None Neither of the Trust, Company nor any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gi) Not to The Company and the Guarantors will not solicit any offer to buy or offer or to sell the Securities Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to the Company and the Guarantors will make available, upon request, to any seller of such Securities Notes the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is Company and the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act.
(k) Each of the Company and the Guarantors will use its best efforts to (i) If requested by you, to use their commercially reasonable efforts to permit the Securities Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. NASD relating to trading in the PORTAL Market.
Market and (jii) None of permit the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect Notes to the Securities, be eligible for clearance and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the settlement through The Depository Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themCompany.
(l) Not to take any action prohibited by Regulation M under The Company and the Exchange Act Guarantors shall promptly prepare the Final Memorandum and will cooperate with and assist the Initial Purchaser in connection with the distribution marketing and sale of the Securities contemplated herebyNotes consistent with standards customary in the marketing and sale of similar securities, including, without limitation, the provision of information reasonably requested by the Initial Purchaser and the performance of all "roadshow" activities (including, without limitation, making available to the Initial Purchaser and prospective investors in the Notes management, accountants and others reasonably requested by the Initial Purchaser).
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration The Company and each of the agreements Guarantors jointly and severally covenant and agree with each of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant with each Initial Purchaser as followsthat:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on The Company and each of the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of Guarantors will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendments or supplements and amendments thereto as you to the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and each of the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum"blue sky" laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the Securities; PROVIDED, HOWEVER, that in connection therewith, neither the Company nor any Guarantor shall be required to qualify as a foreign corporation, to furnish take any acts which would require it to you qualify to do business or to execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchasers of the Securities, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company will promptly notify the Initial Purchasers thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and furnishwill prepare, at its own expensethe expense of the Company, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that the statements in the Final Memorandum as so amended corrects such statement or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading omission or so that the Final Memorandum, as amended or supplemented, will comply with applicable laweffects such compliance.
(d) To endeavor The Company will, without charge, provide to qualify the Securities for offer Initial Purchasers and sale under to counsel to the securities Initial Purchasers as many copies of the Preliminary and Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's The Company and the Guarantors' counsel and Guarantors will apply the Company's, Storm's and EnCana's accountants in connection with net proceeds from the issuance and sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For and during the period ending on the date no Securities are outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other fees communications (financial or expenses in connection otherwise) furnished by the Company or the Guarantors to the Trustee or the holders of the Securities and, promptly after available, copies of any reports or financial statements furnished to or filed by the Company or the Guarantors with the preparation Commission or any national securities exchange on which any class of each Memorandum and all amendments and supplements theretosecurities of the Company or the Guarantors may be listed.
(g) Prior to the Time of Purchase, including all printing costs associated therewith, and the delivering of copies thereof Company will furnish to the Initial Purchasers, as soon as they have been prepared in the quantities herein above specifiedfinal form, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company and for any period subsequent to the Guarantors relating to investor presentations on any "road show" undertaken period covered by the most recent financial statements appearing in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the Trust, The Company and its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to Neither the Company nor any of the Guarantors will solicit any offer to buy or offer or to sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities ActAct and not saleable in full under Rule 144 under the Act (or any successor provision), to the Company and Guarantors will make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is Company and the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its best efforts to (i) If requested by you, to use their commercially reasonable efforts to permit the Securities Notes to be designated included for quotation on PORTAL securities in accordance with and (ii) permit the rules Notes to be eligible for clearance and regulations adopted by settlement through the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themDepositary.
(l) Not The Company and each of the Guarantors will do and perform all things required to take any action prohibited be done and performed by Regulation M it under this Agreement and the Exchange Act other Basic Documents prior to or after the Closing, subject to the qualifications and limitations in the writing that expresses such obligations, and to satisfy all conditions precedent on their part to the obligations of the Initial Purchasers under this Agreement to purchase and accept delivery of the Securities.
(m) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S), neither the distribution Company nor the Guarantors will register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities contemplated herebyin the form of definitive securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (United Industries Corp)
Covenants of the Company and the Guarantors. In further consideration Each of the agreements of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant covenants and agrees with each the Initial Purchaser as followsPurchasers that:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on The Company and the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of Guarantors will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have consented. The Company and the Guarantors will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements and amendments thereto as you to the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Notes; provided, however, that in connection therewith, none of the Company nor any Guarantor shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchasers of the Notes, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum as then amended or supplemented would, in order the judgment of the Company, the Guarantors or in the reasonable opinion of counsel for the Initial Purchasers include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company and furnishthe Guarantors will promptly notify the Initial Purchasers thereof and will prepare, at its own expensethe expense of the Company and the Guarantors, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that the statements in the Final Memorandum as so amended corrects such statement or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading omission or so that the Final Memorandum, as amended or supplemented, will comply with applicable laweffects such compliance.
(d) To endeavor The Company and the Guarantors will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Preliminary Memorandum and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's The Company and the Guarantors' counsel and Guarantors will apply the Company's, Storm's and EnCana's accountants in connection with net proceeds from the issuance and sale of the Securities Notes substantially as set forth under "Use of Proceeds" in the Final Memorandum.
(f) From the Closing Date until the date that no Notes are outstanding under the Indenture, the Company and the Guarantors will furnish to the Initial Purchasers copies of all reports and other fees communications (financial or expenses in connection otherwise) furnished by the Company to the Trustee or the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company or any Guarantors with the preparation Commission or any national securities exchange on which any class of each Memorandum and all amendments and supplements theretosecurities of the Company or any Guarantors may be listed.
(g) Prior to the Closing Date, including all printing costs associated therewith, and the delivering of copies thereof Company will furnish to the Initial Purchasers, in the quantities herein above specifiedas soon as they have been prepared, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company and the Guarantors relating for any period subsequent to investor presentations on any "road show" undertaken the period covered by the most recent financial statements appearing in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the TrustCompany, its Affiliates the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gi) Not to solicit any offer to buy or offer or sell None of the Securities by means of Company nor the Guarantors will engage in any form of "general solicitation solicitation" or "general advertising advertising" (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Notes or in any manner involving a public offering of the Notes within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the TrustCompany, its the Guarantors nor their Affiliates or nor any person acting on its or their behalf (other than the Initial Purchasers) will engage to engage, in any directed selling efforts (as that term is defined in Regulation S) with respect to the SecuritiesNotes, and the Trustto comply, and to have its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply comply, with the offering restrictions requirement requirements of Regulation S.
(k) For so long as any of the Notes remain outstanding, the Company and the Guarantor will make available, upon request, to any seller of such Notes the information specified in Rule 144A(d)(4) under the Act, unless the Company and the Guarantor are then subject to Section 13 or 15(d) of the Exchange Act.
(l) For a period of 180 days from the date of the Final Memorandum, the Company and the Guarantor will not offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of the Guarantors (other than the Notes or the Exchange Notes) without the prior written consent of the Initial Purchasers.
(m) During the period of from the Closing Date until two years after the Closing Date, without the Trust prior written consent of the Initial Purchasers, the Company and the Guarantors will not, and will not permit any of its Affiliates to their affiliates (as defined in Rule 144 under the Act) to, resell any of the Securities which constitute "restricted securities" under Rule 144 Notes that have been reacquired by them, except for Notes purchased by the Company or any of its affiliates and resold in a transaction registered under the Act.
(n) In connection with the offering of the Notes, until the Initial Purchasers shall have notified the Company of the completion of the resale of the Notes, the Company and the Guarantors will not, and will cause their affiliated purchasers (as defined in the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Notes, or attempt to induce any person to purchase any Notes; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Notes.
(o) Except as contemplated in the Final Memorandum, the Company and the Guarantors will not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture.
(p) The Company and the Guarantors will not take any action prior to Closing Date which would require the Final Memorandum to be amended or supplemented pursuant to Section 5(c) hereof.
(q) Prior to the Closing Date, the Company and the Guarantors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company or the Guarantors or the condition, financial or otherwise of any of them, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and of which the Initial Purchasers is notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Company and its counsel, after notification to the Initial Purchasers, such press release or communication is required by law.
(lr) Not The Company will use its best efforts to take any action prohibited by Regulation M under (i) permit the Exchange Act Notes to be designated PORTAL securities in connection accordance with the distribution of rules and regulations adopted by the Securities contemplated herebyNASD relating to trading in the Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Notes to be eligible for clearance and settlement through the Depository Trust Company ("DTC").
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, each of the Company and the Guarantors, jointly and severally, covenant covenants with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company or any Guarantor and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses (which shall not include any Initial Purchaser’s discounts or commissions payable to such Initial Purchaser) incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's and EnCana's Parent’s accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company or any Guarantor and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALPORTAL or any appropriate market system, (ivvi) the costs and charges of the Trustee and any transfer agent, registrar, paying agent or depositary, (vvii) the cost of printing certificates representing the Securities, if printed, (viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsParent, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement, the Indenture and the Registration Rights Agreement and (x) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, 8 entitled “Indemnity and Contribution,” and the last paragraph of Section 1010 below, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of the TrustNot to, its Affiliates or any person acting on its or and to use their behalf (other than the Initial Purchasers) will reasonable best efforts to ensure that no Affiliate will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Parent is then subject to Section 13 or 15(d) of the Exchange Act.
(ik) If requested by you, to use their commercially reasonable best efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities DealersFinancial Industry Regulatory Authority, Inc. relating to trading in the PORTAL Market.
(jl) None of the TrustParent, its the Company, their Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the TrustParent, its the Company and their Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(km) During the period of two years one year after the Closing Date, neither the Trust Parent or the Company will notresell, and will not permit any of its Affiliates use their best efforts to resell prevent their affiliates (as such term is defined in Rule 144 under the Securities Act) from reselling, any of the Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired acquired by any of them.
(ln) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby. Each of the Parent and Company agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial Purchasers, it will not, during the period ending 30 days after the date of the Time of Sale Memorandum, offer, sell, contract to sell or otherwise dispose of any debt securities of the Parent or the Company or warrants to purchase debt securities of the Parent or the Company substantially similar to the Securities (other than the sale of the Securities under this Agreement).
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the GuarantorsGriffon Guarantors and, upon execution of the Purchase Agreement Joinder, the ClosetMaid Guarantor, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any “written communication” (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act that is incorporated by reference in the Pricing Disclosure Package or the Final Memorandum unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall have given their consent, such consent not to be unreasonably withheld or delayed; provided that such consent shall not be necessary if the Company shall have been advised by counsel that the filing of such report is required by applicable law. The Company will promptly advise the Initial Purchasers when any document filed under the Exchange Act that is incorporated by reference in the Pricing Disclosure Package or the Final Memorandum shall have been filed with the Commission on or prior to the Closing Date. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, neither the Company nor any of the Guarantors shall be required to furnish qualify as a foreign corporation or other organization or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities, any event occurs or information becomes known to the Company as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial PurchasersClosing Date, (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package or any Issuer Written Communication so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Final Memorandum Pricing Disclosure Package or any Issuer Written Communication as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) None of the TrustCompany, its Affiliates the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, engage in any form of “general solicitation solicitation” or “general advertising advertising” (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(h) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities New Notes to be designated PORTAL securities in accordance with the rules eligible for clearance and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Marketsettlement through The Depository Trust Company.
(j) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of Deutsche Bank Securities Inc., neither the Company nor any Guarantor will offer, sell, contract to sell or otherwise dispose of, except as provided hereunder or in the Registration Rights Agreement, any securities of the Company or any Guarantor (or guaranteed by the Company or any Guarantor) that are substantially similar to the Securities (other than Exchange Securities).
(k) In connection with Securities offered and sold in an “off-shore transaction” (as defined in Regulation S), the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, ex- cept in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(l) None of the TrustCompany, its Affiliates the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S..
(km) During the For a period of two years after one year (calculated in accordance with paragraph (d) of Rule 144 under the Act) following the Closing Date, the Trust will not, and will not permit Guarantors or any of its Affiliates to resell their Affiliates, none of the Company, the Guarantors or any of their Affiliates will sell any such Securities except pursuant to an effective registration statement under the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themAct.
(ln) Not to take any action prohibited by Regulation M under On the Exchange Act in connection with Acquisition Date, immediately after the distribution consummation of the Securities contemplated hereby.Acquisition, the Company and the Griffon Guarantors shall cause to be delivered to the Initial Purchasers (i) executed copies of the Purchase Agreement Joinder, Registration Rights Agreement Joinder and the Supplemental Indenture, in each case executed and delivered by the ClosetMaid Guarantor and the other parties party thereto, and (ii) the opinion of Dechert LLP, counsel for the Guarantors, substantially in the form attached hereto as Exhibit B.
Appears in 1 contract
Samples: Purchase Agreement (Griffon Corp)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, each of the Company and the Guarantors, jointly and severally, covenant covenants with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company or any Guarantor and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses (which shall not include any Initial Purchaser’s discounts or commissions payable to such Initial Purchaser) incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's and EnCana's Parent’s accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company or any Guarantor and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALany appropriate market system, (ivvi) the costs and charges of the Trustee and any transfer agent, registrar, paying agent or depositary, (vvii) the cost of printing certificates representing the Securities, if printed, (viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsParent, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement, the Indenture and the Registration Rights Agreement and (x) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, 8 entitled “Indemnity and Contribution,” and the last paragraph of Section 1010 below, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of the TrustNot to, its Affiliates or any person acting on its or and to use their behalf (other than the Initial Purchasers) will reasonable best efforts to ensure that no Affiliate will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Parent is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(jk) None of the TrustParent, its the Company, their Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the TrustParent, its the Company and their Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(kl) During the period of two years one year after the Closing Date, neither the Trust Parent or the Company will notresell, and will not permit any of its Affiliates use their best efforts to resell prevent their affiliates (as such term is defined in Rule 144 under the Securities Act) from reselling, any of the Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired acquired by any of them.
(lm) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby. Each of the Parent and Company agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial Purchasers, it will not, during the period ending 30 days after the date of the Time of Sale Memorandum, offer, sell, contract to sell, pledge or otherwise dispose of any debt securities of the Parent or the Company or warrants to purchase debt securities of the Parent or the Company substantially similar to the Securities (other than the sale of the Securities under this Agreement).
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser Underwriter as follows:
(a) To furnish to you in New York Cityyou, without charge, prior a signed copy of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and to 3:00 p.m. New York City time on deliver to each of the business day next succeeding the date of this Agreement and Underwriters during the period mentioned in Section 6(c)6(e) or 6(f) below, as many copies of the Final Memorandum Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing either Memorandumthe Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to use file any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense (provided, however, that after nine months from the date of the Prospectus, any such preparation, filing and furnishing shall be at the expense of the Underwriters), to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date hereof and prior to of the date on which all public offering of the Securities shall have been sold as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by the Initial Purchaserslaw to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum Prospectus in order to make the statements therein, in the light of the circumstances when the Final Memorandum Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial PurchasersUnderwriters, it is necessary to amend or supplement the Final Memorandum Prospectus to comply with applicable law, forthwith to prepare prepare, file with the Commission and furnish, at its own expense, to the Initial PurchasersUnderwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Final Memorandum Prospectus so that the statements in the Final Memorandum Prospectus as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Final MemorandumProspectus, as amended or supplemented, will comply with applicable law.
(dg) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that the Company shall not be required to qualify as a foreign corporation, to take any action that would subject it to the service of process (except service of process with respect to the offering of the Securities) or to subject itself to taxation in excess of a normal amount under the laws of any such jurisdiction.
(eh) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance registration and sale delivery of the Securities under the Securities Act and the issuance and delivery of Common Stock upon conversion of the Notes and all other fees or expenses in connection with the preparation and filing of each Memorandum the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and all amendments and supplements theretoto any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456 (b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Initial PurchasersUnderwriters and dealers, in the quantities herein above hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(g) hereof, including filing fees and the reasonable and documented out-of-pocket fees and disbursements of one primary counsel and any reasonably necessary local counsel for the Initial Purchasers Underwriters in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) all filing fees and the reasonable and documented out-of-pocket fees and disbursements of one primary counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by FINRA, (v) any fees charged by the rating agencies for the rating of the Securities, (iiivi) the fees and expenses, if any, incurred in connection with the admission cost of the Securities for trading in PORTALpreparation, issuance and delivery of the Securities, (ivvii) the costs and charges of the Trustee and any trustee, transfer agent, registrar or depositary, (vviii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production preparation or dissemination of any electronic road show slides and graphics, fees and expenses of any consultants engaged in connection with the electronic road show presentations with the prior approval of the Company Company, (ix) the document production charges and the Guarantorsexpenses associated with printing this Agreement, travel (x) all expenses and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered fees in connection with the road showapplication for listing of the Maximum Number of Shares on the NYSE, subject to official notice of issuance, and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, 8 entitled “Indemnity and Contribution,” and the last paragraph of Section 1010 below, the Initial Purchasers will Underwriters shall pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fj) None If the third anniversary of the Trust, its Affiliates or any person acting on its or their behalf (other than initial effective date of the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Registration Statement occurs before all the Securities Act) which could be integrated with have been sold by the sale Underwriters, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities in a manner which would require to continue without interruption; references herein to the Registration Statement shall include the new registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted statement declared effective by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.Commission;
(k) During the period of two years after beginning on the date hereof and continuing to and including (x) the First Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Trust will notCompany or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than commercial paper issued in the ordinary course of business) without the prior written consent of the Manager identified in Schedule I with the authorization to release this lock-up on behalf of the Underwriters, and will (y) the date that is 90 days after the date of the Prospectus (such 90-day period, the “Lock-Up Period), not permit to, directly or indirectly, (i) offer for sale, sell, pledge, or otherwise dispose of any shares of its Affiliates Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other derivatives transaction that transfers to resell another, in whole or in part, any of the Securities which constitute "restricted economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities" under Rule 144 that have been reacquired by , in cash or otherwise, or (iii) publicly disclose the intention to do any of themthe foregoing, in each case, without the prior written consent of the Manager identified in Schedule I with the authorization to release this lock-up on behalf of the Underwriters; provided that the restrictions in clause (x) and (y) shall not apply to (A) the issuance of the Securities to be sold hereunder, (B) the issuance of Common Stock upon conversion of the Notes being sold hereunder, (C) the issuance of Common Stock upon the exercise of an option, warrant or other similar right, or the conversion of a security outstanding on the date hereof, (D) grants, issuances or exercises under any existing employee benefit plans and the 2012 Long-Term Incentive Plan, (E) the filing of a registration statement on Form S-8 relating to shares of Common Stock issued under any existing employee benefit plans, (F) offers or agreements to issue Common Stock or securities exchangeable for, exercisable for or convertible into shares of Common Stock in connection with the acquisition of, or joint venture with, another company or the settlement of a claim; provided that no issuance of securities pursuant to such offers or agreements may occur until the expiration of the Lock-Up Period; (G) the repurchase of any 2.375% Convertible Senior Notes due 2015 and 3.25% Convertible Senior Notes due 2015 and (H) grants, issuances or exercises pursuant to a written trading plan designed to comply with Rule 10b5-1 of the Exchange Act, provided that no sales or other dispositions may occur under such plans until the expiration of the Lock-Up Period.
(l) Not To prepare a final term sheet relating to take any action prohibited by Regulation M under the Exchange Act in connection with offering of the distribution Securities, containing only information that describes the final terms of the Securities contemplated herebyor the offering in a form consented to by the Manager (which consent shall not be unreasonably withheld or delayed), and to file with the Commission such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(m) To list, subject to notice of issuance, a number of shares of Common Stock equal to the Maximum Number of Shares on the NYSE by the First Closing Date, and to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, registrar for the Common Stock.
(n) To reserve and keep available at all times, free of preemptive rights, the Maximum Number of Shares.
(o) Between the date hereof and the later of (i) the First Closing Date and (ii) the Option Closing Date, if any, that is latest in time, the Company will not do or authorize any act or thing that would, if it occurred after such Closing Date, result in an adjustment of the conversion rate for the Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Alpha Natural Resources, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents referred to therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Offered Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Offered Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial PurchasersPurchasers and to such dealers as the Representative may designate, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) To use the proceeds from the offer and sale of the Offered Securities in the manner described in the Time of Sale Memorandum and the Final Offering Memorandum under the caption “Use of Proceeds.”
(h) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its their respective obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Offered Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the issue and delivery of the Offered Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Offered Securities under state securities laws and all expenses in connection with the qualification of the Offered Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Offered Securities, (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALPORTAL or any appropriate market system, (ivvi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vvii) the cost of the preparation, issuance and delivery of the Offered Securities, (viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (ix) all other cost and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Offered Securities by them and any advertising expenses connected with any offers they may make.
(fi) None of Neither the Trust, its Affiliates or Company nor any person acting on its or their behalf (other than the Initial Purchasers) Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Offered Securities in a manner which would require the registration under the Securities Act of the Offered Securities.
(gj) Not to solicit any offer to buy or offer or sell the Offered Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hk) While any of the Offered Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Offered Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(il) If requested by you, to use their commercially reasonable its best efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(jm) None of the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Offered Securities, and the Trust, Company and its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(kn) During the period of two years after the Closing Date, Date the Trust Company will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Offered Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under . The Company also agrees that, without the Exchange Act in connection with the distribution prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial Purchasers, it will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Offered Securities contemplated hereby(other than the sale of the Offered Securities under this Agreement).
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any “written communication” (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any supplements and amendments thereto as you report with the Commission under the Exchange Act relating to the offering of the Notes or that may reasonably requestbe expected to impact the offering of the Notes unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall have given their consent, such consent not to be unreasonably withheld or delayed; provided that such consent shall not be necessary if the Company shall have been advised by counsel that the filing of such report is required by applicable law. The Company will promptly advise the Initial Purchasers when any document filed under the Exchange Act that is incorporated by reference in the Pricing Disclosure Package or the Final Memorandum shall have been filed with the Commission on or prior to the Closing Date. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, neither the Company nor any of the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities, any event occurs or information becomes known to the Company as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial PurchasersClosing Date, (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package or any Issuer Written Communication so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Final Memorandum Pricing Disclosure Package or any Issuer Written Communication as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) None of the TrustCompany, its Affiliates the Guarantors or any person acting on of their Affiliates (which expressly does not include Xxxxxxx, Sachs & Co. and its or their behalf (other than the Initial Purchasersaffiliates) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates (which expressly does not include Xxxxxxx, Xxxxx & Co. and its affiliates) or sell the Securities by means of persons acting on their behalf to, engage in any form of “general solicitation solicitation” or “general advertising advertising” (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(h) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities Notes to be designated PORTAL securities in accordance with the rules eligible for clearance and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Marketsettlement through The Depository Trust Company.
(j) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of Deutsche Bank Securities Inc., neither the Company nor any Guarantor will offer, sell, contract to sell or otherwise dispose of, except as provided hereunder or in the Registration Rights Agreement, any securities of the Company or any Guarantor (or guaranteed by the Company or any Guarantor) that are substantially similar to the Securities (other than Exchange Securities).
(k) In connection with Securities offered and sold in an “off-shore transaction” (as defined in Regulation S), the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(l) None of the TrustCompany, its Affiliates the Guarantors or any person acting on of their Affiliates (which expressly does not include Xxxxxxx, Sachs & Co. and its or their behalf (other than the Initial Purchasersaffiliates) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities.
(m) For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the Act) following the date any Securities are acquired by the Company, the Guarantors or any of their Affiliates (which expressly does not include Xxxxxxx, Xxxxx & Co. and its affiliates), none of the TrustCompany, its the Guarantors or any of their Affiliates will sell any such Securities except pursuant to an effective registration statement under the Act.
(n) With respect to any Existing Notes that remain outstanding and each person acting on its or their behalf (other than the Initial Purchasers) will comply are not repurchased in connection with the offering restrictions requirement of Regulation S.
(k) During the period of two years after Tender Offer and Consent Solicitation on the Closing Date, on the Trust will not, and will not permit any Closing Date the Company shall deliver to the trustee under the Existing Notes Indenture an irrevocable notice of its Affiliates to resell any redemption in accordance with the provisions of the Securities Existing Notes Indenture (a copy of which constitute "restricted securities" under Rule 144 that have been reacquired by any of themshall be delivered to the Initial Purchasers).
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Samples: Purchase Agreement (Griffon Corp)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, each of the Company and the Guarantors, jointly and severally, covenant covenants with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities and the Guarantees for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that, in connection therewith, the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.
(e) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement of the Company and its subsidiaries that satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158).
(f) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's ’s and EnCana's the Guarantors’ accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities and the Guarantees for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the SecuritiesSecurities and the Guarantees, (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALPORTAL or any appropriate market system, (ivvi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vvii) the cost of the preparation, issuance and delivery of the Securities, (viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and Company, the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph (ix) all of Section 10, the Initial Purchasers will pay all of their Purchasers’ reasonable costs and expenses, including fees and disbursements of their counsel, but not limited to transfer taxes payable on resale of any of the Securities by them them, and any advertising expenses connected with any the offers they may makemake (provided, however, that the fees and disbursements of counsel to the Initial Purchasers shall be borne by the Initial Purchasers), and (x) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood that the Initial Purchasers shall pay 50% of the aggregate amount of all road show expenses, unless this Agreement is terminated in the manner set forth in the last paragraph of Section 10, in which case the Company shall pay 100% of the aggregate amount of all road show expenses.
(fg) None of Neither the TrustCompany, its Affiliates or the Guarantors nor any person acting on its or their behalf (other than the Initial Purchasers) Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the SecuritiesSecurities or the Guarantees.
(gh) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hi) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by you, to To use their commercially reasonable its best efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(jk) None of the TrustCompany, its the Guarantors, their Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the TrustCompany, its the Guarantors and their Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(kl) During the period of two years after the Closing Date, the Trust Company and the Guarantors will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration Each of the agreements of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant covenants and agrees with each the Initial Purchaser as followsthat:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on The Company and the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of Guarantors will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchaser shall not have consented. The Company and the Guarantors will promptly, upon the reasonable request of the Initial Purchaser or counsel for the Initial Purchaser, make any amendments or supplements and amendments thereto as you to the Preliminary Memorandum or the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchaser.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchaser in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of which jurisdictions as the Initial Purchaser may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Notes; PROVIDED, HOWEVER, that in connection therewith, none of the Company or any Guarantor shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchaser of the Notes or the Private Exchange Securities, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company and furnishthe Guarantors will promptly notify the Initial Purchaser thereof and will prepare, at its own expensethe expense of the Company and the Guarantors, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that the statements in the Final Memorandum as so amended corrects such statement or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading omission or so that the Final Memorandum, as amended or supplemented, will comply with applicable laweffects such compliance.
(d) To endeavor The Company and the Guarantors will, without charge, provide to qualify the Securities Initial Purchaser and to counsel for offer the Initial Purchaser as many copies of the Preliminary Memorandum and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchaser may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses Notes as set forth under "Use of Proceeds" in connection with the preparation of each Memorandum and all amendments and supplements theretoFinal Memorandum.
(f) From the Closing Date until the date that no Notes are outstanding under the Indenture, including all printing costs associated therewith, the Company and the delivering of copies thereof Guarantors will furnish to the Initial PurchasersPurchaser copies of all reports and other communications (financial or otherwise) furnished by the Company or the Guarantors to the Trustee, in or the quantities herein above specifiedholders of the Notes and, all expenses in connection as soon as available, copies of any reports or financial statements furnished to or filed by the Company or the Guarantors with the qualification Commission or any national securities exchange on which any class of securities of the Securities for offer and sale under state securities laws as provided in Section 6(dCompany or the Guarantors may be listed.
(g) hereofPrior to the Closing Date, including filing fees the Company and the reasonable fees and disbursements of counsel for Guarantors will furnish to the Initial Purchasers in connection with such qualification and in connection with the preparation Purchaser, as soon as they have been prepared, a copy of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company and the Guarantors relating for any period subsequent to investor presentations on any "road show" undertaken the period covered by the most recent financial statements appearing in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the TrustCompany, its Affiliates the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gi) Not to solicit any offer to buy None of the Company or offer or sell the Securities by means of Guarantors will engage in any form of "general solicitation solicitation" or "general advertising advertising" (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Notes or in any manner involving a public offering of the Notes within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities Notes remain "restricted securities" within outstanding, the meaning of Company and the Securities Act, to Guarantors will make available, upon request, to any seller of such Securities Notes the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is Company and the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act.
(k) Each of the Company and the Guarantors will use its best efforts to (i) If requested by you, to use their commercially reasonable efforts to permit the Securities Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. NASD relating to trading in the PORTAL Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Notes to be eligible for clearance and settlement through The Depository Trust Company.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration The Company and the Guarantors covenant and agree with the Initial Purchaser that:
(a) The Company will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the agreements Initial Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchaser shall not have given its consent, which consent shall not be unreasonably withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers contained Purchaser or counsel to the Initial Purchaser, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be necessary or advisable in this Agreementconnection with the resale of the Notes by the Initial Purchaser.
(b) The Company and the Guarantors will cooperate with the Initial Purchaser in arranging for the qualification of the Notes and the Guarantees for offering and sale under the securities or "blue sky" laws of such jurisdictions as the Initial Purchaser may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the Notes; provided, however, that in connection therewith, the Company and the Guarantors, jointly and severally, covenant with each Initial Purchaser Guarantors shall not be required to qualify as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of the Final Memorandum and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memoranduma foreign corporation, to furnish take any acts which would require it to you qualify to do business or to execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchaser of the Notes, the Exchange Notes or the Private Exchange Notes, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company will promptly notify the Initial Purchaser thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and furnishwill prepare, at its own expensethe expense of the Company, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that the statements in the Final Memorandum as so amended corrects such statement or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading omission or so that the Final Memorandum, as amended or supplemented, will comply with applicable laweffects such compliance.
(d) To endeavor The Company will, without charge, provide to qualify the Securities for offer Initial Purchaser and sale under to counsel to the securities Initial Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchaser may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation Notes as set forth under "Use of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, Proceeds" in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) None For and during the period ending on the date no Notes are outstanding, the Company will furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or the holders of the TrustNotes and, promptly after available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
(g) Prior to the Time of Purchase, the Company will furnish to the Initial Purchaser, as soon as they have been prepared in final form, a copy of any unaudited interim financial statements of the Company and Subsidiaries for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) The Company nor any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gi) Not to The Company will not solicit any offer to buy or offer or to sell the Securities Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities ActAct and not saleable in full under Rule 144 under the Act (or any successor provision), to the Company will make available, upon request, to any seller of such Securities Notes the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its best efforts to (i) If requested by you, to use their commercially reasonable efforts to permit the Securities Notes to be designated included for quotation on PORTAL securities in accordance with and (ii) permit the rules Notes to be eligible for clearance and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the settlement through The Depository Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themCompany.
(l) Not The Company and the Guarantors (to take any action prohibited the extent a party thereto) will do and perform all things required to be done and performed by Regulation M them under this Agreement and the Exchange Act other Basic Documents prior to or after the Closing, subject to the qualifications and limitations in the writing that expresses such obligations, and to satisfy all conditions precedent on their part to the obligations of the Initial Purchaser under this Agreement to purchase and accept delivery of the Notes.
(m) In connection with Notes offered and sold in an offshore transaction (as defined in Regulation S), the distribution Company will not register any transfer of such Notes not made in accordance with the Securities contemplated herebyprovisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Notes in the form of definitive securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Aircraft Service International Inc)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either any Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication or Permitted General Solicitation to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication or Permitted General Solicitation to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, subject to compliance with paragraph (b) above, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial PurchasersPurchasers or, if later, the Closing Date, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, subject to compliance with paragraph (b) above, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and each of the Guarantors jointly and severally agree to pay or cause to be paid all expenses incident to the performance of its their respective obligations under this Agreementhereunder, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandums, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication and all any Permitted General Solicitation prepared by or on behalf of, used by, or referred to by the Company and the Guarantors and any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (i) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (i) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iii) any fees charged by rating agencies for the rating of the Securities, (iiii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALany appropriate market system, (ivi) the costs and charges of the Trustee Trustee, the Collateral Agent and any paying agent, transfer agent, registrar or depositary, (vi) the cost of the preparation, issuance and delivery of the Securities, (i) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, (i) the document production charges and expenses associated with printing this Agreement, (x) the fees and expenses incurred with respect to creating, documenting and perfecting the security interests in the Collateral as contemplated by the Security Documents and with respect to related revisions to any Preliminary Memorandum, the Time of Sale Memorandum, any Additional Written Offering Communication, any Permitted General Solicitation and the Final Memorandum (including any amendment or supplement thereto) (including the related reasonable and documented fees and expenses of counsel to the Initial Purchasers for all periods prior to and after the Closing Date) and (xi) all other cost and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 87, and the last paragraph of Section 109, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of Neither the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) Guarantor nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hi) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by youDuring the period of one year after the Closing Date, to use their commercially reasonable efforts to permit neither the Securities Company nor any Guarantor will be an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None registered under Section 8 of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.Investment Company Act.
(k) During the period of two years six months after the Closing Date, neither the Trust Company nor any Guarantor will, nor will not, and will not it permit any of person that is its Affiliates to affiliate (as defined in Rule 144 under the Securities Act) at such time (or has been its affiliate within the three months preceding such time) to, resell any of the Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(m) The Company and each of the Guarantors jointly and severally shall pay, and shall indemnify and hold the Initial Purchasers harmless against, any stamp, issue, registration, documentary, sales, transfer or other similar taxes or duties imposed under the laws of the Xxxxxxxx Islands or any political sub-division or taxing authority thereof or therein that is payable in connection with (i) the execution, delivery, consummation or enforcement of this Agreement, (ii) the creation, allotment and issuance of the Securities or (iii) the sale and delivery of the Securities to the Initial Purchasers or purchasers procured by the Initial Purchasers.
(n) The Company and each Guarantor (i) shall complete on or prior to the Closing Date (or such later date as permitted by the Security Documents) all filings and other similar actions required in connection with the perfection of security interests in the Collateral as and to the extent contemplated by the Indenture and the Security Documents and (ii) shall take all actions necessary to maintain such security interests and to perfect security interests in any Collateral acquired after the Closing Date, in each case as and to the extent contemplated by the Indenture and the Security Documents.
(o) On the Closing Date, except as otherwise contemplated by the Security Documents, each document required by the Security Documents, or under law or reasonably requested by the Representative, in each case, to be filed, registered or recorded, or delivered for filing on or prior to the Closing Date in order to create in favor of the Trustee, for the benefit of the Holders, a perfected first-priority lien and security interest in the Collateral, prior and superior to the right of any other person (other than Permitted Liens), shall be executed and in proper form for filing, registration or recordation.
(p) None of the Company or any of its affiliates or any other person acting on its or their behalf (other than the Initial Purchasers, as to which no covenant is given) will (i) without the prior written consent of the Representative solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D other than a Permitted General Solicitation listed on Annex D hereto, or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S. The Company and the Guarantors also agree that, during a period of 60 days from the date of this Agreement, neither the Company nor any Guarantor will, without the prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of, or publicly disclose the intention to do any of the foregoing with respect to, any debt securities issued or guaranteed by the Company or any Guarantor and having a tenor of more than one year. The foregoing sentence shall not apply to (a) the sale of the Securities hereunder to the Initial Purchasers or (b) the purchase of the Outstanding Notes pursuant to the Tender Offer.
Appears in 1 contract
Samples: Purchase Agreement (Teekay Corp)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and each of the Guarantors, jointly and severally, covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time 7:00 a.m., California time, on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many electronic copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object, except as may be required by applicable law.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company or any Guarantor and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States and Canada as you shall reasonably requestrequest in writing prior to the Closing Date, provided that in connection therewith neither the Company nor any Guarantor shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or subject itself to taxation in respect of doing business in any jurisdiction in which it is otherwise not so subject.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company or any Guarantor and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other similar taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof6(f), including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALon any appropriate market system, (ivvi) the costs and charges of the Trustee, the Collateral Agent and any transfer agent, registrar or depositary, and the fees and disbursements of counsel for the Trustee and the Collateral Agent in connection with the Transaction Documents, (vvii) the cost of the preparation, issuance and delivery of the Securities, (viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, consultants and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing the Transaction Documents, (x) the reasonable fees and expenses incurred with respect to creating, documenting and perfecting the security interests in the Collateral as contemplated by the Security Documents (including the related reasonable fees and expenses of counsel to the Initial Purchasers in connection therewith for all periods prior to and after the Closing Date) and (xi) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None To use the net proceeds received by it from the sale of the Trust, Securities pursuant to this Agreement in the manner specified in the Time of Sale Memorandum under the caption “Use of Proceeds.”
(i) Neither the Company nor its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which that would require the registration under the Securities Act of the Securities.
(gj) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hk) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(jl) None of the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers, their Affiliates or any person acting on their behalf) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, Company and its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers, their Affiliates or any person acting on their behalf) will comply with the offering restrictions requirement of Regulation S.
(km) During the period of two years one year after the Closing Date, the Trust Company will not, and will use its commercially reasonable efforts to not permit any of its Affiliates to affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities which that constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(ln) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(o) Within the time periods specified in the Security Documents and the Indenture, as applicable, the Company and the Guarantors shall execute and deliver, furnish, file, register or record, or cause to be executed and delivered, furnished, filed, registered or recorded, all such documents and instruments (including, but not limited to, any financing statements and Mortgages) required by the Security Documents and the Indenture to be executed and delivered, furnished, filed, registered or recorded subsequent to the Closing Date to cause the Securities and the Guarantees to be secured by liens on the Collateral. The Company and each Guarantor also agree that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers, it will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Securities (other than the sale of the Securities under this Agreement).
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers Placement Agents contained in this Agreement, the Company and the Guarantorseach Guarantor (unless otherwise indicated below), jointly and severally, covenant agree with each Initial Purchaser Placement Agent as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c)Agreement, as many copies of the Final Memorandum Memorandum, and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandumthe Final Memorandum at any time prior to the completion of the initial offering by the Placement Agents, to furnish to you a copy of each such proposed amendment or supplement (other than as contemplated by Section 17 hereof) and not to use any such proposed amendment or supplement to which you reasonably object.
(c) IfIf requested by you, during such period after the date hereof and prior Company shall have authorized The Bank of New York (the “Luxembourg Listing Agent”) to make or cause to be made an application on the date on which all Company’s behalf for the Memorandum to be approved by the Luxembourg Stock Exchange (the “Stock Exchange”) for listing of the Securities shall have been sold by Notes on the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light official list of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel Stock Exchange and for the Initial Purchasers, it is necessary Notes to amend or supplement be admitted to trading on the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light EuroMTF market of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable lawStock Exchange.
(d) If requested by you, the Company will use its reasonable best efforts to procure, within 15 business days of such request, the listing of the Notes on the Stock Exchange and to maintain such listing and do or cause to be done all such acts, to provide all such information, to pay such fees, to give such undertakings and to execute all such documents as shall be necessary or required by the Stock Exchange for the purpose of or in connection with the application for listing the Notes on the Stock Exchange or the maintenance of such listing.
(e) To notify the Placement Agents of any communication received prior to the completion (as determined by the Placement Agents) of the distribution of the Notes from the Stock Exchange or any other governmental authority or regulatory body or agency which may have a material adverse effect on the offering or distribution of the Notes or relating to the form, content or use of the Final Memorandum and to provide the Placement Agents with copies of any such communication that is in writing.
(f) To endeavor to cooperate with the Placement Agents and their counsel to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Final Memorandum, and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial PurchasersPlacement Agents, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Placement Agents, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers Placement Agents in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, incurred in connection with the admission listing of the Securities for trading in PORTALNotes on the Stock Exchange, (ivvi) the costs and charges of the Trustee Trustee, any paying agent, any listing agent and any transfer agent, registrar or depositary, (vii) the cost of the preparation, issuance and delivery of the Securities, (viii) the document production charges and expenses associated with printing this Agreement, (ix) all expenses in connection with any offer and sale of the Securities outside of the United States, including all filing fees and the reasonable fees and disbursements of counsel for the Placement Agents in connection with offers and sales outside of the United States, and (vx) the all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors relating to investor presentations on any "road show" undertaken hereunder for which provision is not otherwise made in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road showthis Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers Placement Agents will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of the TrustCompany, its Affiliates any of the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(jk) None of the TrustCompany, its the Guarantors, their respective Affiliates or any person acting on its or their behalf (other than the Initial PurchasersPlacement Agents) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the TrustCompany, its the Guarantors and their respective Affiliates and each person acting on its or their behalf (other than the Initial PurchasersPlacement Agents) will comply with the offering restrictions requirement of Regulation S.
(kl) During the period of two years one year after the Closing Date, the Trust Company will not, and will not permit any of its Affiliates to affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities Securities, which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(lm) Not to None of the Company, the Guarantors, or any of their respective Affiliates will take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(n) The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Placement Agents’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Final Memorandum.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of The Company and the agreements Guarantors covenant and agree with each of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant with each Initial Purchaser as followsthat:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of The Company will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent, which consent shall not be unreasonably withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendments or supplements and amendments thereto as you to the Preliminary Memorandum or the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchasers.
(b) Before amending The Company will cooperate with the Initial Purchasers in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the Notes; provided, however, that in connection therewith, the Company shall not be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchasers of the Notes or the Private Exchange Notes, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company will promptly notify the Initial Purchasers thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and furnishwill prepare, at its own expensethe expense of the Company, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that the statements in the Final Memorandum as so amended corrects such statement or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading omission or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.effects such compliance. 25
(d) To endeavor The Company will, without charge, provide to qualify the Securities for offer Initial Purchasers and sale under to counsel to the securities Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For and during the period ending on the date no Notes are outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other fees communications (financial or expenses in connection otherwise) furnished by the Company to the Trustee or the holders of the Notes and, promptly after available, copies of any reports or financial statements furnished to or filed by the Company with the preparation Commission or any national securities exchange on which any class of each Memorandum and all amendments and supplements theretosecurities of the Company may be listed.
(g) Prior to the Closing Date, including all printing costs associated therewith, and the delivering of copies thereof Company will furnish to the Initial Purchasers, in the quantities herein above specifiedas soon as they have been prepared, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company and for any period subsequent to the Guarantors relating to investor presentations on any "road show" undertaken period covered by the most recent financial statements appearing in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Samples: Securities Purchase Agreement (Paxson Communications Corp)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantorseach Guarantor, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Notes by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on neither the business day next succeeding Company nor the date of this Agreement Guarantors will amend or supplement the Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Notes (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) unless the Representative shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Representative shall have given its consent (such consent not to be unreasonably delayed, withheld or conditioned). The Company and the Guarantors will promptly, upon the reasonable request of the Representative or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchasers.
(b) Before amending The Company will cooperate with the Initial Purchasers in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Notes; provided, however, that in connection therewith, the Company and the Guarantors shall not be required to furnish to you qualify as a copy of each such proposed amendment foreign corporation or supplement and not to use other entity or as a dealer in securities in any such proposed amendment jurisdiction where it would not otherwise be required to so qualify or supplement to which you reasonably objectexecute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(c) (i) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold sale by the Initial PurchasersPurchasers of the Notes, any event shall occur occurs or condition exist information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance and (ii) if at any time prior to the Closing Date (A) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Initial Purchasers, (B) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph 4(a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that the Final Memorandum, Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) For so long as any of the Notes remain outstanding, upon request by the Initial Purchasers, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Securities unless at such time WSMM shall be subject to Section 13 or 15(d) of the Exchange Act and shall have filed all reports required to be filed pursuant to such sections and the related rules and regulations of the SEC.
(g) None of the TrustCompany, its the Guarantors nor any of their Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gh) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of their respective subsidiaries, Affiliates or offer or sell the Securities by means of persons acting on their behalf to, (i) engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Notes or (ii) engage in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hi) While For so long as any of the Securities Notes remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless at such time the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities Notes to be designated PORTAL eligible for clearance and settlement through DTC.
(k) During the period beginning on the date hereof and continuing to the date that is 60 days after the Closing Date, without the prior written consent of the Representative, the Company and the Guarantors will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company or the Guarantors (or guaranteed by the Company or the Guarantors) that are substantially similar to the Notes.
(l) In connection with Notes offered and sold in an offshore transaction (as defined in Regulation S) the Company will not register any transfer of such Notes not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Securities DealersRegulation S, Inc. relating to trading if applicable, issue any such Notes in the PORTAL Marketform of definitive securities.
(jm) None of the TrustCompany, its the Guarantors, nor any of their Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themNotes.
(ln) Not to take any action prohibited by Regulation M For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the Exchange Act in connection with Act) following the distribution date any Notes are acquired by the Company or any of their Affiliates, none of the Securities contemplated herebyCompany nor any of their Affiliates will sell any such Notes.
Appears in 1 contract
Samples: Purchase Agreement (WillScot Mobile Mini Holdings Corp.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents referred to therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Offered Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Offered Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial PurchasersPurchasers and to such dealers as the Representative may designate, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) To use the proceeds from the offer and sale of the Offered Securities in the manner described in the Time of Sale Memorandum and the Final Memorandum under the caption “Use of Proceeds.”
(h) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its their respective obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Offered Securities and the granting and perfecting of the security interests in the Collateral and all other fees or expenses in connection with the issuance and sale of the Offered Securities, including, without limitation, in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company and all any amendments and supplements theretoto any of the foregoing, this Agreement, the Indenture, the Security Documents and the Notes, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the preparation, issuance and delivery of the Notes to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Offered Securities under state securities laws and all expenses in connection with the qualification of the Offered Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiv) any fees charged by rating agencies for the rating of the SecuritiesNotes, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (ivvi) the costs and charges of the Trustee Trustee, the Collateral Agent and any transfer agent, registrar or depositary, (vvii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, (viii) the fees and expenses incurred with respect to creating, documenting and perfecting the security interests in the Collateral as contemplated by the Security Documents (including the related reasonable fees and expenses of counsel to the Initial Purchasers for all period prior to and after the Closing Date in connection therewith) and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder and under the other Transaction Documents for which provision is not otherwise made in this Section 6. It is understood, however, that except as provided in this SectionSection 6, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Offered Securities by them and any advertising expenses connected with any offers they may make.
(fi) None of Neither the Trust, its Affiliates or Company nor any person acting on its or their behalf (other than the Initial Purchasers) Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Offered Securities in a manner which would require the registration under the Securities Act of the Offered Securities.
(gj) Not to solicit any offer to buy or offer or to sell the Offered Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hk) While any of the Offered Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Offered Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(jl) None of the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Offered Securities, and the Trust, Company and its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(km) During the period of two years one year after the Closing Date, Date the Trust Company will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Offered Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them. The Company also agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers, it will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Offered Securities (other than the sale of the Offered Securities under this Agreement).
(ln) Not The Company will deliver to take any action prohibited by Regulation M under each Initial Purchaser (or its agent), on the Exchange Act date of execution of this Agreement, a properly completed and executed Certification regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation as each Initial Purchaser may reasonably request in connection with the distribution verification of the foregoing Certification.
(o) If any Existing Notes remain outstanding after the Closing Date, the Company shall as promptly as possible thereafter, provide to the trustee under the indenture governing each such series of Existing Notes, an irrevocable notice of redemption in accordance with the terms of the applicable indenture stating that the Company will redeem all of the Existing Notes outstanding under such indenture.
(p) The Company shall apply the proceeds from the offer and sale of the Offered Securities contemplated herebyas described in the Time of Sale Memorandum and the Final Memorandum under the caption “Use of Proceeds” in accordance with the notice of redemption described in Section 6(o) herein.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly Guarantors covenant and severally, covenant agree with each of the several Initial Purchaser Purchasers as follows:
(a) To furnish the Company and the Guarantors will deliver to you in New York City, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum (including all amendments and any supplements and amendments thereto thereto) as you the Initial Purchasers may reasonably request.;
(b) Before amending before distributing any amendment or supplementing either supplement to the Time of Sale Information or the Final Memorandum, to the Company and the Guarantors will furnish to you the Initial Purchasers a copy of each such the proposed amendment or supplement for review and not to use distribute any such proposed amendment or supplement to which you the Initial Purchasers reasonably object.disapprove after reasonable notice thereof;
(c) Ifif, during such period after the date hereof and at any time prior to the date on which all completion of the initial placement of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary in the opinion of the Initial Purchasers to amend or supplement the Time of Sale Information or the Final Memorandum in order that the Time of Sale Information or the Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Time of Sale Information or the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, if it is necessary to amend or supplement the Time of Sale Information or the Final Memorandum to comply with applicable law, the Company and the Guarantors will forthwith to prepare and furnish, at its own expensethe expense of the Company and the Guarantors, to the Initial PurchasersPurchasers and to the dealers (whose names and addresses the Initial Purchasers will furnish to the Company) to which Securities may have been sold by the Initial Purchasers on behalf of the Initial Purchasers and to any other dealers upon request, either such amendments or supplements to the Time of Sale Information or the Final Memorandum as may be necessary to correct such untrue statement or omission or so that the statements in the Time of Sale Information or the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.;
(d) To the Company and the Guarantors will endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Initial Purchasers shall reasonably request.request and to continue such qualification in effect so long as reasonably required for distribution of the Securities and to pay all fees and expenses (including fees and disbursements of counsel to the Initial Purchasers) reasonably incurred in connection with such qualification and in connection with the determination of the eligibility of the Securities for investment under the laws of such jurisdictions as the Initial Purchasers may designate; provided that neither the Company nor any Guarantor shall be required to file a general consent to service of process in any jurisdiction or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified;
(e) Whether without the prior written consent of Xxxxxxxxx & Company, Inc. and Bear, Xxxxxxx & Co. Inc., the Company and the Guarantors will not, during the period ending 90 days after the date of the Final Memorandum (the “Lock-up Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock or (iii) file with the Commission a registration statement under the Securities Act relating to any additional shares of Common Stock or securities convertible into, or exchangeable for, any shares of Common Stock, or publicly disclose the intention to effect any transaction described in clause (i), (ii) or (iii), whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided that the foregoing shall not apply to (A) the sale of the Securities under this Agreement or the issuance of the Underlying Securities, (B) the grant by the Company of employee or director stock options, restricted stock awards or restricted stock unit awards in the ordinary course of business, the issuance by the Company of any shares of Common Stock of the Company upon the exercise of an option or upon the sale by the Company of shares of Common Stock pursuant to the Company’s employee stock purchase plan, (C) any transfer of shares of Common Stock pursuant to the Company’s 401(k) plan, (D) the filing by the Company of any registration statement with the Commission on Form S-8 relating to the offering of securities pursuant to the terms of the Company’s existing incentive plan or employee stock purchase plan, (E) the conversion of a security outstanding on the date hereof, (F) the Hedge and Warrant Transaction Documentation executed by the Company concurrently with the pricing of the Securities and (G) filing of any registration statement in respect of the Securities and the Underlying Securities.
(f) the Company will use the net proceeds received by the Company from the sale of the Securities pursuant to this Agreement in the manner specified in the Time of Sale Information and the Final Memorandum under the caption “Use of Proceeds”;
(g) the Company and the Guarantors will use their reasonable best efforts to have the Underlying Securities listed on the New York Stock Exchange;
(h) during the period from the Closing Date until two years after the Closing Date, or the Option Closing Date, if applicable, without the prior written consent of the Initial Purchasers, the Company and the Guarantors will not, and will not permit any of their “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any of the Securities or Underlying Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any of them;
(i) whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to the Company and the Guarantors will pay or cause to be paid all costs and expenses incident to the performance of its obligations under this Agreementhereunder, including: including without limiting the generality of the foregoing, all fees, costs and expenses (i) incident to the feespreparation, disbursements issuance, execution, authentication and delivery of the Securities, including any expenses of the Company's Trustee, (ii) incident to the preparation, printing and distribution of the Preliminary Memorandum, Time of Sale Information and the Guarantors' counsel Final Memorandum (including in each case all exhibits, amendments and the Company'ssupplements thereto), Storm's and EnCana's accountants (iii) incurred in connection with the issuance registration or qualification and sale determination of eligibility for investment of the Securities and all other fees or expenses in connection with under the preparation laws of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to such jurisdictions as the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, Purchasers may designate (including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and their disbursements), (iv) in connection with the preparation admission for trading of the Blue Sky Securities on any securities exchange or legal investment memorandum, inter-dealer quotation system (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred as well as in connection with the admission of the Securities for trading in the Private Offerings, Resales and Trading through Automatic Linkages (“PORTAL, (iv”) the costs and charges system of the Trustee and National Association of Securities Dealers, Inc. or any appropriate market system), (v) related to any filing with the National Association of Securities Dealers, Inc., (vi) in connection with the printing (including word processing and duplication costs) and delivery of this Agreement, the Indenture, the Preliminary and Supplemental Blue Sky Memoranda and any Legal Investment Survey and the furnishing to Initial Purchasers and dealers of copies of the Preliminary Memorandum and the Final Memorandum, including mailing and shipping, as herein provided, (vii) payable to rating agencies in connection with the rating of the Securities, (viii) in connection with the listing of the Underlying Securities on the New York Stock Exchange, and (ix) any expenses incurred by the Company in connection with a “road show” presentation to potential investors (it being understood that, except as expressly set forth in this Section 5(i) and elsewhere in this Agreement (including, but not limited to, Sections 7 and 10 hereof), the Company shall have no obligation to pay any costs and expenses of the Initial Purchasers, including legal fees incurred by the Initial Purchasers);
(j) the Company and each Guarantor shall not be or become, at any time prior to the Guarantors relating expiration of two years after the Closing Date, an open-end investment company, unit investment trust, closed-end investment company or face-amount certificate company that is or is required to investor presentations on be registered under Section 8 of the Investment Company Act;
(k) while the Securities remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any "road show" undertaken period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to the purchasers and any holder of Securities in connection with any sale thereof and any prospective purchaser of Securities and securities analysts, in each case upon request, the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act (or any successor thereto);
(l) the Company will not take any action prohibited by Regulation M under the Exchange Act, in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any distribution of the Securities by them and any advertising expenses connected with any offers they may make.contemplated hereby;
(fm) None none of the TrustCompany, any of its Affiliates affiliates (as defined in Rule 501(b) under the Securities Act) or any person acting on behalf of the Company or such affiliate will solicit any offer to buy or offer or sell the Securities or the Underlying Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D, including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio; and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising;
(n) none of the Company, any of its affiliates (as defined in Rule 501(b) under the Securities Act) or their any person acting on behalf (other than of the Initial Purchasers) Company or such affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could will be integrated with the sale of the Securities or the Underlying Securities in a manner which would require the registration under the Securities Act of the Securities or Underlying Securities., and the Company will take all action that is appropriate or necessary to assure that its offerings of other securities will not be integrated for purposes of the Securities Act with the offering contemplated hereby;
(go) Not the Company and the Guarantors will execute and deliver the Registration Rights Agreement in the form previously agreed upon and will comply with all provisions and obligations of the Registration Rights Agreement as required herein;
(p) prior to solicit any offer registration of the Securities pursuant to buy the Registration Rights Agreement, or offer at such earlier time as may be so required, to qualify the Indenture under the Trust Indenture Act, and to enter into any necessary supplemental indentures in connection therewith;
(q) the Company will use its reasonable best efforts to cause the Securities to be eligible for trading on PORTAL;
(r) the Company will reserve and keep available at all times, free of pre-emptive rights, shares of Common Stock for the purpose of enabling the Company to satisfy all obligations to issue the Underlying Securities upon conversion of the Securities;
(s) except for such documents that are publicly available on the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”), the Company and the Guarantors shall furnish to the holders of the Securities as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the date of the Final Memorandum), to make available to its security holders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(t) during a period of five years from the date of the Final Memorandum, except for such documents that are publicly available on XXXXX, the Company and the Guarantors shall furnish to you copies of all reports or sell other communications (financial or other) furnished to stockholders of the Company, and deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any securities exchange on which the Securities, or any class of securities of the Company or Guarantor is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission);
(u) the Company and the Guarantors shall comply with all agreements set forth in the representation letter of the Company to DTC relating to the approval of the Securities by means DTC for “book-entry” transfer;
(v) the Company and the Guarantors shall advise the Initial Purchasers promptly, and, if requested by the Initial Purchasers, confirm such advice in writing, of the issuance by any state securities commission of any form stop order suspending the qualification or exemption of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within for offering or sale in any jurisdiction, or the meaning initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, and shall use their reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any of the Securities Actunder any state securities or Blue Sky laws, and if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption of any of the Securities under any state securities or Blue Sky laws, the Company and the Guarantors shall use their reasonable best efforts to make available, upon request, to any seller obtain the withdrawal or lifting of such Securities order at the information specified in Rule 144A(d)(4earliest possible time; and
(w) the Company shall use its reasonable best efforts to cause to become effective under the Securities Act, unless the Trust is then subject on or prior to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years 180 days after the Closing Date, a registration statement on Form S-3 providing for the Trust will not, and will not permit any registration of its Affiliates to resell any the resale of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under and the Exchange Act Underlying Securities in connection accordance with the distribution provisions of the Securities contemplated herebyRegistration Rights Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Hornbeck Offshore Services Inc /La)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers Placement Agent contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant Guarantors each covenants with each Initial Purchaser the Placement Agent as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 5:00 p.m. New York City time on the business day next succeeding the date of this Agreement (or such other date as you and we may mutually agree) and during the period mentioned in Section 6(c), as many copies of the Final Memorandum and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object; provided, however, that your consent to such amendment or supplement may not be unreasonably withheld or delayed.
(c) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial PurchasersPlacement Agent, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial PurchasersPlacement Agent, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial PurchasersPlacement Agent, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities and the Guarantees for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that the Company shall not be required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified.
(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: :
(i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial PurchasersPlacement Agent, in the quantities herein above specified,
(ii) all costs and expenses related to the transfer and delivery of the Securities to the Placement Agent, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers Placement Agent in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, ,
(iiiv) any fees charged by rating agencies for the rating of the Securities, ,
(iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, PORTAL or any appropriate market system,
(ivvi) the costs and charges of the Trustee and any transfer agent, registrar or depositary,
(vvii) the cost of the preparation, issuance and delivery of the Securities and the Guarantees,
(viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, and
(ix) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers Placement Agent will pay all of their its costs and expenses, including fees and disbursements of their its counsel, transfer taxes payable on resale of any of the Securities by them it and any advertising expenses connected with any offers they it may make.
(f) None of Neither the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) Guarantor nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such the Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable its best efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial PurchasersPlacement Agent) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, Company and its Affiliates and each person acting on its or their behalf (other than the Initial PurchasersPlacement Agent) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust Company will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M The Company will apply the Purchase Price as set forth in the Final Memorandum under the Exchange Act caption "The Dames & Xxxxx Acquisition, The Financing Plan and Use of Proceeds".
(m) The Company will use its best efforts to consummate the Merger, in connection accordance with the distribution of Merger Agreement, as soon as practicable following the Securities contemplated herebydate hereof.
Appears in 1 contract
Samples: Placement Agreement (Urs Corp /New/)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and each of the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Road Show Slides and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Representative shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Representative shall have given its consent, which consent shall not be unreasonably conditioned, delayed or withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and each Guarantor will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Company or any Guarantor shall be required to furnish qualify as a foreign corporation or other entity or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) (i) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold sale by the Initial PurchasersPurchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and the Final Memorandum to comply with applicable law, the Company will promptly notify the Representative thereof and will prepare, at the expense of the Company, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (ii) if at any time prior to the Closing Date, (A) any event shall occur or condition shall exist as a result of which it is the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (B) it is necessary to amend or supplement the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance offering and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed; provided, however, that any such reports, financial statements or other communications that are filed with the Commission and are generally available to the public on the Commission’s website shall be deemed to have been furnished to the Initial Purchasers.
(g) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the offer and sale of the Securities.
(gh) Not to solicit None of the Company or any offer to buy or offer or sell the Securities by means of its Affiliates will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under D) in connection with the offering of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hi) While For so long as any of the Securities remain "restricted securities" outstanding within the meaning of Rule 144(a)(3) under the Securities Act, to the Company will make availableavailable at its expense, upon request, to any seller holder of such Securities the Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by you, to The Company will use their commercially reasonable its best efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through DTC.
(k) During the period beginning on the date hereof and continuing to the date that is 60 days after the date of this Agreement, without the prior written consent of Xxxxx Fargo Securities, LLC, the Company will not directly or indirectly, sell, offer, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the Securities.
(l) As long as there are any Securities outstanding, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Act) to resell any of the Securities that have been reacquired by any of them, unless upon such resale such Security will no longer be a “restricted security” as defined in Rule 144.
(m) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S), the Company will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading in the PORTAL Marketform of definitive securities.
(jn) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Samples: Purchase Agreement (LGI Homes, Inc.)
Covenants of the Company and the Guarantors. In further consideration of The Company and the agreements EAC Guarantor (and, upon the Closing Date, the EHI Guarantors) covenant and agree with each of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Notes by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Notes (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall have given their consent. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchasers.
(b) Before amending The Company and the EAC Guarantor (and, upon the Closing Date, the EHI Guarantors) will cooperate with the Initial Purchasers in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Notes; provided, however, that in connection therewith, the Company shall not be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Notes or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers through the Representative thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, Closing Date (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers through the Representative thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers through the Representative such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of the Notes remain outstanding (unless the following information is publicly available via XXXXX or any successor platform thereof), the Company will furnish to the Initial Purchasers copies of all reports and other fees communications (financial or expenses in connection otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available (unless the following information is publicly available via XXXXX or any successor platform thereof), copies of any reports or financial statements furnished to or filed by the Company with the preparation Commission or any national securities exchange on which any class of each Memorandum and all amendments and supplements theretosecurities of the Company may be listed.
(g) Prior to the Closing Date, including all printing costs associated therewith, and the delivering of copies thereof Company will furnish to the Initial Purchasers, in the quantities herein above specifiedas soon as they have been prepared, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Pricing Disclosure Package and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the TrustCompany, the EAC Guarantor (or, upon the Closing Date, any EHI Guarantor) or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gi) Not to solicit The Company and the EAC Guarantor (and, upon the Closing Date, the EHI Guarantors) will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While any For a period of two years following the Securities remain "restricted securities" within Closing Date, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ik) If requested by you, to The Company will use their commercially reasonable its best efforts to permit the Securities Notes to be designated PORTAL eligible for clearance and settlement through The Depository Trust Company.
(l) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of Deutsche Bank Securities Inc., the Company will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the Notes.
(m) In connection with Notes offered and sold in an off shore transaction (as defined in Regulation S) the Company will not register any transfer of such Notes not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Securities DealersRegulation S, Inc. relating to trading if applicable, issue any such Notes in the PORTAL Marketform of definitive securities.
(jn) None of the TrustCompany, its Affiliates the EAC Guarantor (or, upon the Closing Date, EHI Guarantors) or any person acting on its or of their behalf (other than the Initial Purchasers) respective Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates Notes.
(o) The Company and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust Guarantor will not, and will not permit any of its Affiliates to their respective affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities which constitute "restricted securities" under Rule 144 Notes that have been reacquired acquired by them, except for Notes purchased by the Company, any Guarantor or any of themtheir respective affiliates and resold in a transaction registered under the Securities Act.
(lp) Not to take any action prohibited by Regulation M under the Exchange Act in connection In accordance with the distribution terms of the Securities contemplated herebyIndenture, the Initial Purchasers and the Trustee shall have received each of the following which shall be reasonably satisfactory in form and substance to the Initial Purchasers, the Collateral Agent, the Trustee and each of their respective counsel with respect to the Collateral, as appropriate:
(i) policies or certificates of insurance as required by the Security Documents, or Indenture, which policies or certificates shall reflect the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Notes, as additional insured and loss payee and shall otherwise bear endorsements of the character required pursuant to the Security Documents;
(ii) Uniform Commercial Code, judgment, tax lien and intellectual property searches confirming that the personal property comprising a part of each mortgaged property or the Collateral is subject to no liens other than Permitted Liens; and
(iii) executed copies of the Transaction Documents, in form and substance reasonably satisfactory to the Initial Purchasers and all actions required by the Transaction Documents to perfect the liens granted thereunder shall have been taken.
(q) The Company and the Guarantors shall cause the Notes and the Guarantees to be secured by a lien on the Collateral to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure Package and the Final Offering Memorandum.
(r) On the Closing Date, the EHI Guarantors will execute the Joinder Agreement.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration Each of the agreements of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant Guarantors covenants with each Initial Purchaser as follows:
(a) To furnish to you the Representative in New York City, without charge, prior to 3:00 p.m. New York City time on as promptly as practicable following the Time of Sale and in any event not later than the third business day next succeeding following the date of this Agreement hereof and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you the Representative may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you the Representative a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you the Representative reasonably objectobjects.
(c) To furnish to the Representative a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication to which the Representative reasonably objects.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum to reflect any material changes in the information provided therein so that the Time of Sale Memorandum will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the Time of Sale Memorandum as so amended or supplemented will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, when delivered to a Subsequent Purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum to reflect any material changes in the information provided therein so that the Final Memorandum will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they are made, not misleading, misleading or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will notnot contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, when the Final Memorandum is delivered to a purchaserSubsequent Purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor cooperate with counsel for the Initial Purchasers to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions (including provinces in Canada) as you the Representative shall reasonably request; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits (other than those arising out of the offering or sale of the Securities) or taxation in any jurisdiction where it is not now subject.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's ’s accountants and EnCana's accountants other advisors in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation issuance and sale of each Memorandum the Securities, including, without limitation, in connection with the preparation, printing, filing, shipping and all distribution of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication and any amendments and supplements theretoto any of the foregoing, and the Transaction Documents, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, (ii) all costs and expenses related to the transfer and delivery of the Securities and the Exchange Securities (if issued) to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the quantities herein above specified, offer and sale of the Securities under state and Canadian securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state and Canadian securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the SecuritiesSecurities or the Exchange Securities (if issued), (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALany appropriate market system, (ivvi) the costs and charges of the Trustee Trustee, the Escrow Agent and any transfer agent, registrar or depositary, (vvii) the cost of the preparation, issuance and delivery of the Securities, (viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, provided, however, that the Company and the Initial Purchasers agree that the Initial Purchasers shall pay or cause to be paid 50% of the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement and (x) all other cost and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 1011, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of Neither the Trust, its Affiliates or Company nor any person acting on its or their behalf (other than the Initial Purchasers) Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with if, as a result of the doctrine of “integration” referred to in Rule 502 under the Securities Act, such offer or sale would render invalid (for the purpose of (i) the sale of the Securities in a manner which would require by the Company to the Initial Purchasers, (ii) the resale of the Securities by the Initial Purchasers to the Subsequent Purchasers or (iii) the resale of the Securities by such Subsequent Purchasers to others) the exemption from the registration under requirements of the Securities Act of the Securitiesprovided by Section 4(a)(2) thereof or by Rule 144A or by Regulation S thereunder or otherwise.
(gi) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Rule 502(c) of Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hj) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act and shall have filed all reports required to be filed pursuant to such Sections and the related rules and regulations of the Commission.
(k) During the period of one year after the Closing Date, the Company will not be, nor will it become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(jl) None of the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, Company and its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(km) During the period of two years after the Closing Date, the Trust The Company will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act) to resell resell, any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired acquired by any of them.
(ln) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(o) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Time of Sale Memorandum and the Final Memorandum.
(p) During the period of 90 days following the date hereof, the Company will not and will not permit any of its subsidiaries to, without the prior written consent of the Representative (which consent may be withheld at the sole discretion of the Representative), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Company or any subsidiary of the Company or securities exchangeable for or convertible into debt securities of the Company or any subsidiary of the Company (other than as contemplated by this Agreement and to register the Exchange Securities).
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any “written communication” (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any supplements and amendments thereto as you report with the Commission under the Exchange Act relating to the offering of the Notes or that may reasonably requestbe expected to impact the offering of the Notes unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall have given their consent, such consent not to be unreasonably withheld or delayed; provided that such consent shall not be necessary if the Company shall have been advised by counsel that the filing of such report is required by applicable law. The Company will promptly advise the Initial Purchasers when any document filed under the Exchange Act that is incorporated by reference in the Pricing Disclosure Package or the Final Memorandum shall have been filed with the Commission on or prior to the Closing Date. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, neither the Company nor any of the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, Closing Date (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Final Memorandum Pricing Disclosure Package or any Issuer Written Communication as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Company may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other fees communications (financial or expenses in connection otherwise) furnished by the Company to the Trustee or to the holders of the Securities and, upon request, copies of any reports or financial statements furnished to or filed by the Company with the preparation Commission or any national securities exchange on which any class of each Memorandum and all amendments and supplements theretosecurities of the Company may be listed.
(g) Prior to the Closing Date, including all printing costs associated therewith, and the delivering of copies thereof Company will furnish to the Initial Purchasers, in the quantities herein above specifiedas soon as they have been prepared, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company for any period subsequent to the period covered by the most re- cent financial statements appearing in the Pricing Disclosure Package and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the TrustCompany, its Affiliates the Guarantors or any person acting on of their affiliates (which expressly does not include Xxxxxxx, Sachs & Co. and its or their behalf (other than the Initial Purchasersaffiliates) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective affiliates (which expressly does not include Xxxxxxx, Xxxxx & Co. and its affiliates) or sell the Securities by means of persons acting on their behalf to, engage in any form of “general solicitation solicitation” or “general advertising advertising” (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ik) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities Notes to be designated PORTAL eligible for clearance and settlement through The Depository Trust Company.
(l) During the period beginning on the date hereof and continuing to the date that is 180 days after the Closing Date, without the prior written consent of Deutsche Bank Securities Inc., neither the Company nor any Guarantor will offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company or any Guarantor (or guaranteed by the Company or any Guarantor) that are substantially similar to the Securities.
(m) In connection with Securities offered and sold in an “off-shore transaction” (as defined in Regulation S), the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading in the PORTAL Marketform of definitive securities.
(jn) None of the TrustCompany, its Affiliates the Guarantors or any person acting on of their affiliates (which expressly does not include Xxxxxxx, Sachs & Co. and its or their behalf (other than the Initial Purchasersaffiliates) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(lo) Not to take any action prohibited by Regulation M For a period of one year (calculated in accordance with paragraphs (d) of Rule 144 under the Exchange Act in connection with Act) following the distribution date any Securities are acquired by the Company, the Guarantors or any of their affiliates (which expressly does not include Xxxxxxx, Xxxxx & Co. and its affiliates), none of the Securities contemplated herebyCompany, the Guarantors or any of their controlled Affiliates will sell any such Securities.
Appears in 1 contract
Samples: Purchase Agreement (Griffon Corp)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and each of the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Road Show Slides and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Representative shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Representative shall have given its consent, which consent shall not be unreasonably conditioned, delayed or withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and each Guarantor will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Company and any Guarantor shall be required to furnish qualify as a foreign corporation or other entity or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) (i) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold sale by the Initial PurchasersPurchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and the Final Memorandum to comply with applicable law, the Company will promptly notify the Representative thereof and will prepare, at the expense of the Company, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (ii) if at any time prior to the Closing Date, (A) any event shall occur or condition shall exist as a result of which it is the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (B) it is necessary to amend or supplement the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance offering and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed; provided, however, that any such reports, financial statements or other communications that are filed with the Commission and are generally available to the public on the Commission’s website shall be deemed to have been furnished to the Initial Purchasers.
(g) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the offer and sale of the Securities.
(gh) Not to solicit None of the Company or any offer to buy or offer or sell the Securities by means of its Affiliates will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under D) in connection with the offering of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hi) While For so long as any of the Securities remain "restricted securities" outstanding within the meaning of Rule 144(a)(3) under the Securities Act, to the Company will make availableavailable at its expense, upon request, to any seller holder of such Securities the Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by you, to The Company will use their commercially reasonable its best efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through DTC.
(k) During the period beginning on the date hereof and continuing to the date that is 60 days after the date of this Agreement, without the prior written consent of Xxxxx Fargo Securities, LLC, the Company will not directly or indirectly, sell, offer, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the Securities.
(l) As long as there are any Securities outstanding, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Act) to resell any of the Securities that have been reacquired by any of them, unless upon such resale such Security will no longer be a “restricted security” as defined in Rule 144.
(m) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S), the Company will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading in the PORTAL Marketform of definitive securities.
(jn) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Samples: Purchase Agreement (LGI Homes, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either any Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication or Permitted General Solicitation to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication or Permitted General Solicitation to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, subject to compliance with paragraph (b) above, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial PurchasersPurchasers or, if later, the Closing Date, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, subject to compliance with paragraph (b) above, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and each of the Guarantors jointly and severally agree to pay or cause to be paid all expenses incident to the performance of its their respective obligations under this Agreementhereunder, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandums, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication and all any Permitted General Solicitation prepared by or on behalf of, used by, or referred to by the Company and the Guarantors and any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (i) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (i) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iii) any fees charged by rating agencies for the rating of the Securities, (iiii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALany appropriate market system, (ivi) the costs and charges of the Trustee Trustee, the Collateral Agent and any paying agent, transfer agent, registrar or depositary, (vi) the cost of the preparation, issuance and delivery of the Securities, (i) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, (i) the document production charges and expenses associated with printing this Agreement, (x) the fees and expenses incurred with respect to creating, documenting and perfecting the security interests in the Collateral as contemplated by the Security Documents and with respect to related revisions to any Preliminary Memorandum, the Time of Sale Memorandum, any Additional Written Offering Communication, any Permitted General Solicitation and the Final Memorandum (including any amendment or supplement thereto) (including the related reasonable and documented fees and expenses of counsel to the Initial Purchasers for all periods prior to and after the Closing Date) and (xi) all other cost and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 87, and the last paragraph of Section 109, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of Neither the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) Guarantor nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hi) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by youDuring the period of one year after the Closing Date, to use their commercially reasonable efforts to permit neither the Securities Company nor any Guarantor will be an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None registered under Section 8 of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.Investment Company Act.
(k) During the period of two years six months after the Closing Date, neither the Trust Company nor any Guarantor will, nor will not, and will not it permit any of person that is its Affiliates to affiliate (as defined in Rule 144 under the Securities Act) at such time (or has been its affiliate within the three months preceding such time) to, resell any of the Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(m) The Company and each of the Guarantors jointly and severally shall pay, and shall indemnify and hold the Initial Purchasers harmless against, any stamp, issue, registration, documentary, sales, transfer or other similar taxes or duties imposed under the laws of the Xxxxxxxx Islands or any political sub-division or taxing authority thereof or therein that is payable in connection with (i) the execution, delivery, consummation or enforcement of this Agreement,
Appears in 1 contract
Samples: Purchase Agreement
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each the Initial Purchaser as followsthat:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on None of the business day next succeeding Company or any of the date of this Agreement and during the period mentioned in Section 6(c), as many copies of Guarantors will amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchaser shall not have given its consent, which consent shall not be unreasonably withheld. The Company and the Guarantors will promptly, upon the reasonable request of the Initial Purchaser or counsel to the Initial Purchaser, make any amendments or supplements and amendments thereto as you to the Preliminary Memorandum or the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchaser.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchaser in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of such jurisdictions as the Initial Purchaser may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the Notes; provided, however, that in connection therewith, the Company and the Guarantors shall not be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchaser of the Notes, the Exchange Notes or the Private Exchange Notes, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company and furnishthe Guarantors will promptly notify the Initial Purchaser thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and will prepare, at its own expensethe expense of the Company and the Guarantors, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that the statements in the Final Memorandum as so amended corrects such statement or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading omission or so that the Final Memorandum, as amended or supplemented, will comply with applicable laweffects such compliance.
(d) To endeavor The Company will, without charge, provide to qualify the Securities for offer Initial Purchaser and sale under to counsel to the securities Initial Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchaser may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation Notes substantially as set forth under "Use of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, Proceeds" in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) For and during the period commencing on the date hereof and ending on the date no Notes are outstanding, the Company will furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or the holders of the Notes and, promptly after available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
(g) Prior to the Time of Purchase, the Company will furnish to the Initial Purchaser, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gi) Not to The Company will not, and will not permit any of its Subsidiaries to, solicit any offer to buy or offer or to sell the Securities Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities ActAct and not salable in full under Rule 144 under the Act (or any successor provision), to the Company will make available, upon request, to any seller of such Securities Notes the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company and the Guarantors will use their best efforts to (i) If requested by you, to use their commercially reasonable efforts to permit the Securities Notes to be designated included for quotation on PORTAL securities in accordance with and (ii) permit the rules Notes to be eligible for clearance and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Marketsettlement through The Depository Trust Company.
(jl) None The Company and the Guarantors (to the extent a party thereto) will use their best efforts to do and perform all things required to be done and performed by them under this Agreement and the other Basic Documents prior to or after the Closing and to satisfy all conditions precedent on their part to the obligations of the Trust, its Affiliates or any person acting on its or their behalf Initial Purchaser to purchase and accept delivery of the Notes.
(other than the Initial Purchasersm) will engage In connection with Notes offered and sold in any directed selling efforts an offshore transaction (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) Company will comply not register any transfer of such Notes not made in accordance with the offering restrictions requirement provisions of Regulation S.
(k) During the period of two years after the Closing Date, the Trust S and will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act except in connection accordance with the distribution provisions of Regulation S, if applicable, issue any such Notes in the Securities contemplated herebyform of definitive securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Booth Creek Ski Holdings Inc)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents referred to therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Offered Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Offered Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial PurchasersPurchasers and to such dealers as the Representative may designate, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eg) To use the proceeds from the offer and sale of the Offered Securities in the manner described in the Time of Sale Memorandum and the Final Memorandum under the caption “Use of Proceeds.”
(h) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its their respective obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Offered Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the preparation, issuance and delivery of the Offered Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Offered Securities under state securities laws and all expenses in connection with the qualification of the Offered Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Offered Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (ivv) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vvi) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (vii) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Offered Securities by them and any advertising expenses connected with any offers they may make.
(fi) None Except in connection with the Exchange Offer or the filing of the TrustShelf Registration Statement, its Affiliates or neither the Company nor any person acting on its or their behalf (other than the Initial Purchasers) Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Offered Securities in a manner which would require the registration under the Securities Act of the Offered Securities.
(gj) Not Except in connection with the Exchange Offer or the filing of the Shelf Registration Statement, not to solicit any offer to buy or offer or sell the Offered Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hk) While any of the Offered Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Offered Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(il) If requested by youThe Company agrees that the Initial Purchasers may provide copies of the Preliminary Memorandum, any Additional Written Offering Communication, the Final Memorandum and any other agreements or documents relating thereto, including without limitation, the Indenture, to use their commercially reasonable efforts Xtract Research LLC (“Xtract”), following completion of the offering, for inclusion in an online research service sponsored by Xtract, access to permit the Securities which shall be restricted by Xtract to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL MarketQIBs (as defined below).
(jm) None Except in connection with the Exchange Offer or the filing of the TrustShelf Registration Statement, none of the Company, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Offered Securities, and the Trust, Company and its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(kn) During the period of two years one year after the Closing Date, Date the Trust Company will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Offered Securities which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under . The Company also agrees that, without the Exchange Act in connection with the distribution prior written consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers, it will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Offered Securities contemplated hereby(other than the sale of the Offered Securities under this Agreement).
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of The Company and the agreements of Guarantors jointly and severally covenant and agree with the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant with each Initial Purchaser as followsthat:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of The Company will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given its consent, which consent shall not be unreasonably withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendments or supplements and amendments thereto as you to the Preliminary Memorandum or the Final Memorandum that may reasonably requestbe necessary or advisable in the opinion of the Initial Purchasers or counsel to the Initial Purchasers in connection with the resale of the Senior Notes by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Senior Notes for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the Senior Notes; provided, however, that in connection therewith, none of the Company and the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchasers of the Senior Notes, the Exchange Notes or the Private Exchange Notes, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company will promptly notify the Initial Purchasers thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and furnishwill prepare, at its own expensethe expense of the Company, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that corrects such statement or omission or effects such compliance; provided, however, that the statements Company's obligation hereunder shall not be applicable to the extent resale by the Initial Purchasers may be accomplished pursuant to a Registration Statement (as defined in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable lawSenior Note Registration Rights Agreement).
(d) To endeavor The Company will, without charge, provide to qualify the Securities for offer Initial Purchasers and sale under to counsel to the securities Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation Senior Notes as set forth under "Use of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, Proceeds" in the quantities herein above specifiedFinal Memorandum.
(f) For and during the period ending on the date no Senior Notes or Exchange Notes are outstanding, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating will furnish to investor presentations on the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company or any "road show" undertaken in connection of the Guarantors to the Trustee or the holders of the Senior Notes or Exchange Notes and, promptly after available, copies of any reports or financial statements furnished to or filed by the Company or any of the Guarantors with the marketing Commission or any national securities exchange on which any class of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval securities of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of or any of the Securities by them and any advertising expenses connected with any offers they Guarantors may make.
(f) None of be listed or the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the Nasdaq National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Samples: Securities Purchase Agreement (Unison Healthcare Corp)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the Company and the Guarantorseach Guarantor, jointly and severally, covenant covenants with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 9:00 a.m. New York City time on the business day (defined as any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City) next succeeding the date of this Agreement and during the period mentioned in Section 6(c) and 6(d), as many copies of the Time of Sale Memorandum, the Preliminary Memorandum and the Final Memorandum and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandumthe Time of Sale Memorandum or the Final Memorandum or at any time prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if, in the opinion of counsel for the Initial Purchasers or the Company, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable securities law, forthwith to prepare and furnish, subject to Section 6(b) hereof, at its own expense, to the Initial Purchasers, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Memorandum is delivered to a purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable securities law.
(d) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Initial PurchasersPurchasers or the Company, it is necessary to amend or supplement the Final Memorandum to comply with applicable lawsecurities laws, forthwith to prepare and furnish, subject to Section 6(b) hereof, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable lawsecurities laws.
(de) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that in connection therewith neither the Company nor any subsidiary shall be required to qualify as a foreign corporation or other legal entity, as the case may be, or as a dealer in the securities in any jurisdiction where it would not otherwise be required to so qualify but for this paragraph (d) or to file a general consent to service of process in any jurisdiction where it is not so qualified or so subject or to subject itself to taxation in any jurisdiction if it is not otherwise so subject.
(ef) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's ’s and EnCana's the Guarantors’ accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each the Time of Sale Memorandum, the Preliminary Memorandum and the Final Memorandum, and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, expenses of the Company incurred in connection with the admission approval of the inclusion of the Securities for trading in PORTALthe book-entry system of The Depository Trust Company, (ivvi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vvii) the issuance, transfer and delivery of the Securities by the Company to the Initial Purchasers, (viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road showshow and (ix) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this SectionSection 6, Section 89, and the last paragraph of Section 1011, the Initial Purchasers will pay all of their costs and expenses, including fees fees-and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fg) None That none of the TrustCompany, its the Guarantors nor any of their Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration of the Securities under the Securities Act of the SecuritiesAct.
(gh) Not to That none of the Company, the Guarantors nor any of their Affiliates, will solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hi) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to the Company will make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Securities Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None That none of the TrustCompany, its the Guarantors nor any of their Affiliates or nor any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is terms defined in Regulation S) with respect to the Securities, and each of the TrustCompany, its the Guarantors and their Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) [Reserved].
(l) That none of the Company or the Guarantors will use any written communication which would be considered an issuer free writing prospectus (as defined in Rule 433 of the Securities Act) if this were a registered offering, without the consent of the Initial Purchasers.
(m) Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(n) Not to, and not to permit any of its Affiliates or anyone acting on its or its Affiliates’ behalf to (other than the Initial Purchasers and their Affiliates), distribute prior to the Closing Date any offering material in connection with the offer and sale of the Securities other than the Time of Sale Memorandum and the Final Memorandum.
(o) During the period of two years beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the Trust will notprior written consent of Deutsche Bank Securities Inc., and the Company will not permit offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any of its Affiliates to resell any debt securities of the Securities which constitute "restricted securities" under Rule 144 Company (or guaranteed by the Company) that have been reacquired by any are similar to the Notes; provided that in the event this Agreement is terminated after the execution and delivery of themthis Agreement and prior to the Closing Date, this clause (o) shall not survive.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Samples: Purchase Agreement (Seitel Inc)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant each Guarantor covenants with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time as promptly as practicable on the business day next succeeding Business Day hereafter after the date of this Agreement execution and delivery hereof and during the period mentioned in Section 6(c7(c), as many copies of the Final Memorandum Offering Circular, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either MemorandumOffering Circular, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum Offering Circular in order to make the statements therein, in the light of the circumstances when the Final Memorandum Offering Circular is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum Offering Circular to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum Offering Circular so that the statements in the Final Memorandum Offering Circular as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum Offering Circular is delivered to a purchaser, be misleading or so that the Final MemorandumOffering Circular, as amended or supplemented, will comply with applicable law. The Initial Purchasers agree to notify the Company of the completion of their sale of the Securities.
(d) To endeavor to qualify the Securities (including the Guarantees) for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as ; provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of that the Company and the Guarantors relating will not be obligated to investor presentations on file any "road show" undertaken general consent to service of process or to qualify as a foreign corporation or as a dealer in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(f) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or securities in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, jurisdiction in which it is not so qualified or to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.itself to
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration Each of the agreements of the Initial Purchasers contained in this Agreement, the Company ------------------------------------------- and the Guarantors, jointly and severally, covenant covenants and agrees with each of the Initial Purchaser as followsPurchasers that:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on The Company and the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of Subsidiaries will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall have objected to by notice to the Company, unless the Company is advised by counsel that such amendment or supplement is legally required. The Company and the Subsidiaries will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements and amendments thereto as you to the Preliminary Memorandum or the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Subsidiaries will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of which jurisdictions as the -------- Initial Purchasers may reasonably designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection herewith, neither the -------- ------- Company nor any of the Subsidiaries shall be required to furnish qualify as a foreign entity or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in any such proposed amendment jurisdiction where it is not then so subject or supplement to which you reasonably objectqualified.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold resale by the Initial PurchasersPurchasers of the Securities, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement which, in the reasonable opinion of counsel for the Company, the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when under which they were made and at the Final Memorandum is delivered to a purchasertime made, not misleading, or ifif for any other reason it is necessary, in the reasonable opinion of counsel for the Initial PurchasersCompany, it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company and furnishthe Subsidiaries will promptly notify the Initial Purchasers thereof and will prepare, at its own expensethe expense of the Company and the Subsidiaries, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that the statements in the Final Memorandum as so amended corrects such statement or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading omission or so that the Final Memorandum, as amended or supplemented, will comply with applicable laweffects such compliance.
(d) To endeavor The Company and the Subsidiaries will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Preliminary Memorandum and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not For and during the transactions contemplated in this Agreement period commencing on the date hereof and ending on the date that no Securities are consummated or this Agreement is terminatedoutstanding, to pay or cause to be paid all expenses incident the Company and the Subsidiaries will furnish to the performance Initial Purchasers copies of its obligations under this Agreement, including: all reports and other communications (ifinancial or otherwise) the fees, disbursements and expenses furnished by any of the Company's and Company or the Guarantors' counsel and Subsidiaries to the Company'sTrustee, Storm's and EnCana's accountants in connection with or the issuance and sale holders of the Securities and all other fees and, as soon as available, copies of any reports or expenses in connection financial statements furnished to or filed by the Company or the Subsidiaries with the preparation Commission or any national securities exchange or governing body of each Memorandum and all amendments and supplements theretoany automated quotation system on which any class of securities of any of the Company or the Subsidiaries may be listed.
(f) Prior to the Closing Date, including all printing costs associated therewith, the Company and the delivering of copies thereof Subsidiaries will furnish to the Initial Purchasers, in as soon as they are available to the quantities herein above specifiedCompany, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company and the Guarantors relating Subsidiaries, for any period subsequent to investor presentations on any "road show" undertaken the period covered by the most recent financial statements appearing in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fg) None of the TrustCompany, its Affiliates the Subsidiaries or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gh) Not None of the Company or its Subsidiaries shall, for a period of 120 days following the date hereof, without the prior written consent of the Initial Purchasers, offer, sell, contract to solicit sell or otherwise dispose of, directly or indirectly, any offer debt securities of any of the Company or Subsidiaries, other than the Securities, Exchange Securities, the Private Exchange Securities, and debt securities evidencing indebtedness under the Senior Credit Facility, indebtedness otherwise permitted under the Senior Credit Facility or indebtedness under a loan or similar agreement entered into between the Company or any Subsidiary and banks or banking or other financial institutions or otherwise relating to buy receivables or offer inventory financings entered into by the Company or sell any Subsidiary.
(i) Prior to the Securities effectiveness of the Exchange Registration Statement (as defined in the Registration Rights Agreement) or the Shelf Registration Statement (as defined in the Registration Rights Agreement), as the case may be, and thereafter only to the extent contemplated by means such registration statements, none of the Company or the Subsidiaries will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to the Company and the Subsidiaries will make available, upon request, to any seller holder of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is Company or any of its Subsidiaries are then subject to Section 13 or 15(d) of the Exchange Act.
(k) Each of the Company and the Subsidiaries will use its best efforts to (i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. Dealers (the "NASD") relating to trading in the PORTAL Private Offerings, ---- Resales and Trading through Automated Linkages Market (the "Portal Market.
") and ------------- (jii) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themto be eligible for clearance and settlement through The Depository Trust Company and its participants.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the second business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company or any Guarantor and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a Subsequent Purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor use their reasonable best efforts to qualify arrange for the qualification of the Securities for offer sale and sale the determination of their eligibility for investment under the securities or Blue Sky laws of such jurisdictions in the United States as you shall reasonably requestdesignate and will continue such qualifications in effect so long as required for the resale of the Securities by the Initial Purchasers; provided that the Company and the Guarantors will not be required to qualify as a foreign corporation or as a dealer in securities or to take any action that would subject them to general service of process in any such jurisdiction or where they would be subject to taxation as a foreign corporation.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) 4. the fees, disbursements and expenses of the Company's counsel to the Company and the Guarantors' counsel and , the accountants of the Company's, Storm's the Guarantors and EnCana's accountants Enventis in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company or any Guarantor and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, 5. all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, 6. the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) 7. any fees charged by rating agencies for the rating of the Securities, (iii) 8. the costs and charges of the Trustee and any transfer agent, registrar or depositary, 9. the cost of the preparation, issuance and delivery of the Securities, including the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALany appropriate market system, (iv) the costs and charges of the Trustee and (v) 10. the costs and expenses of the Company and or the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and 50% of the cost of any aircraft chartered in connection with the road show, 11. the document production charges and expenses associated with printing this Agreement, the Indenture and the Registration Rights Agreement and 12. all other cost and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and them, any advertising expenses connected with any offers they may makemake and 50% of the cost of any aircraft chartered in connection with the road show.
(fh) None Neither the Company nor any Affiliate of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) Company will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(jk) None of the TrustCompany, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, Company and its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(kl) During the period of two years one year after the Closing Date, the Trust Company will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act), to resell any of the Securities which constitute "“restricted securities" ” under Rule 144 except pursuant to an effective registration statement; provided that have been reacquired any Securities held by any affiliate of themthe Company that would constitute “restricted securities” under Rule 144 may be resold if the purchaser thereof agrees (and subsequent purchasers agree) to continue to hold such Securities pursuant to a certificated security with a separate CUSIP number from that of any Securities held pursuant to a global security under the Indenture until such Securities are exchanged for Exchange Notes in the Exchange Offer, are sold pursuant to an effective registration statement or may be sold pursuant to Rule 144 under the Securities Act.
(lm) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(n) To take all action required to be taken for the Securities to be eligible for clearance and settlement through DTC.
(o) To comply with all the terms and conditions of the Registration Rights Agreement.
(p) To deliver to the Initial Purchasers on and as of the date hereof and the Closing Date satisfactory evidence of the good standing of the Company and the Guarantors in their respective jurisdictions of organization and the good standing of the Company and the Guarantors in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(q) To use their reasonable best efforts to obtain regulatory registration from the PAPUC with respect to the Guarantees by the Specified Guarantors as soon as practicable after the date hereof. The Company also agrees that, without the prior written consent of the Representative it will not, during the period beginning on the date hereof and continuing to and including the date that is 90 days after the date hereof, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Securities (other than the sale of the Securities under this Agreement).
Appears in 1 contract
Samples: Purchase Agreement (Consolidated Communications Holdings, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and each of the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Road Show Slides and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Representative shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Representative shall have given its consent, which consent shall not be unreasonably conditioned, delayed or withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and each Guarantor will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Company and any Guarantor shall be required to furnish qualify as a foreign corporation or other entity or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) (i) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold sale by the Initial PurchasersPurchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and the Final Memorandum to comply with applicable law, the Company will promptly notify the Representative thereof and will prepare, at the expense of the Company, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (ii) if at any time prior to the Closing Date, (A) any event shall occur or condition shall exist as a result of which it is the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (B) it is necessary to amend or supplement the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Final Memorandum Pricing Disclosure Package or any Issuer Written Communication as may be necessary so that the statements in the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance offering and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed; provided, however, that any such reports, financial statements or other communications that are filed with the Commission and are generally available to the public on the Commission’s website shall be deemed to have been furnished to the Initial Purchasers.
(g) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the offer and sale of the Securities.
(gh) Not to solicit None of the Company or any offer to buy or offer or sell the Securities by means of its Affiliates will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under D) in connection with the offering of the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hi) While For so long as any of the Securities remain "restricted securities" outstanding within the meaning of Rule 144(a)(3) under the Securities Act, to the Company will make availableavailable at its expense, upon request, to any seller holder of such Securities the Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by you, to The Company will use their commercially reasonable its best efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through DTC.
(k) During the period beginning on the date hereof and continuing to the date that is 60 days after the date of this Agreement, without the prior written consent of BofA Securities, Inc., the Company will not directly or indirectly, sell, offer, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company (or guaranteed by the Company) that are substantially similar to the Securities.
(l) As long as there are any Securities outstanding, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Act) to resell any of the Securities that have been reacquired by any of them, unless upon such resale such Security will no longer be a “restricted security” as defined in Rule 144.
(m) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S), the Company will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading in the PORTAL Marketform of definitive securities.
(jn) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
Appears in 1 contract
Samples: Purchase Agreement (LGI Homes, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that nothing contained herein shall require the Company to qualify to do business in any jurisdiction, to execute a general consent to service of process in any state or to subject itself to taxation in any jurisdiction in which it is otherwise not so subject.
(eg) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including (a) filing fees and (b) the reasonable fees and disbursements of counsel for the Initial Purchasers of $15,000 in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALany appropriate market system, (ivvi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vvii) the cost of the preparation, issuance and delivery of the Securities, (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other cost and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section, provided however that any costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of or the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantorspresentations, travel and lodging expenses of the representatives Representative and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show, shall be paid or caused to be paid by the Initial Purchasers. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of Neither the Trust, its Affiliates or Company nor the Guarantors nor any person acting on its or their behalf (other than the Initial Purchasers) Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not To furnish you with any proposed General Solicitation to solicit be made by the Company or the Guarantors or on their behalf before its use, and not to make or use any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Actproposed General Solicitation without your prior written consent.
(hj) While any of the Securities or the Underlying Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is Company or the Guarantors are then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years one year after the Closing Date or any Option Closing Date, if later, the Trust will not, Company and the Guarantors will not permit any of its Affiliates be, nor will they become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to resell any be registered under Section 8 of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themInvestment Company Act.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(m) The Company will reserve and keep available at all times, free of preemptive rights or similar rights, shares of Class C Common Stock for the purpose of enabling the Company to satisfy all obligations to deliver the Underlying Securities upon exchange of the Securities. The Company will use its best efforts to cause the Underlying Securities to be listed on the NYSE. NRG Yield LLC will also reserve and keep available at all times, free of preemptive rights or similar rights, Class C units for the purpose of being issued to the Company pursuant to the terms of the Intercompany Agreements. The Company and the Guarantors also agree that, without the prior written consent of Xxxxxxx, Xxxxx & Co. on behalf of the Initial Purchasers, they and their directors and executive officers will not, during the period ending 90 days after the date of the Final Memorandum ( the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Common Stock or Class C Common Stock or any securities convertible into or exercisable or exchangeable for Class A Common Stock or Class C Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Class A Common Stock or Class C Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Class A Common Stock or Class C Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the sale of the Securities under this Agreement, (b) the issuance by the Company of any shares of Class A Common Stock or Class C Common Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Initial Purchasers have been advised in writing, or (c) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Class A Common Stock or Class C Common Stock, provided that (i) such plan does not provide for the transfer of Class A Common Stock or Class C Common Stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Class A Common Stock or Class C Common Stock may be made under such plan during the Restricted Period.
Appears in 1 contract
Samples: Purchase Agreement (NRG Yield, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each the Initial Purchaser as followsPurchasers that:
(a) To The Company will furnish to you in New York City, without charge, prior the Initial Purchasers and to 3:00 p.m. New York City time on Counsel for the business day next succeeding Initial Purchasers concurrently with the date Time of this Agreement Sale and during the period mentioned referred to in Section 6(c)paragraph (c) below, without charge, as many copies of the Final Offering Memorandum and any amendments and supplements and amendments thereto as you they reasonably may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering of the Notes and will reimburse the Initial Purchasers for payment of the required PORTAL (as defined below) filing fee.
(b) Before amending or supplementing either Memorandum, to furnish to you a copy of each such proposed amendment The Company will not amend or supplement and the Offering Memorandum or the Final Memorandum including by filing documents under the Exchange Act which are incorporated by reference therein prior to the completion of the distribution of the Notes by the Initial Purchasers without the prior written consent of the Initial Purchasers, which consent will not to use any such proposed amendment or supplement to which you reasonably objectbe unreasonably withheld.
(c) If, during such period after the date hereof and At any time prior to the date on which all completion of the Securities shall have been sold distribution of the Notes by the Initial Purchasers, if any event shall occur or condition exist occurs as a result of which it is the Offering Memorandum, as then amended or supplemented, or the Recorded Road Show (taken together with the Offering Memorandum) would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Initial Purchasers, if it is should be necessary to amend or supplement the Final Offering Memorandum or the Recorded Road Show (taken together with the Offering Memorandum) to comply with applicable ap- plicable law, forthwith the Company will promptly (i) notify the Initial Purchasers of the same; (ii) subject to the requirements of paragraph (b) of this Section 5, prepare and furnishprovide to the Initial Purchasers pursuant to paragraph (a) of this Section 5, at an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented or amended Offering Memorandum to the Initial Purchasers and Counsel for the Initial Purchasers, without charge in such quantities as may be reasonably requested.
(d) The Company will (i) qualify the Notes and the Note Guarantees for sale by the Initial Purchasers under the laws of such jurisdictions as the Initial Purchasers may designate and (ii) will maintain such qualifications for so long as required for the sale of the Notes by the Initial Purchasers; provided that the Company will not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject. The Company will promptly advise the Initial Purchasers of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(e) At any time prior to the completion of the distribution of the Notes by the Initial Purchasers, the Company, whenever it, the Guarantors or any of their subsidiaries publishes or makes available to the public (by filing with any regulatory authority or securities exchange or by publishing a press release or otherwise) any information that would reasonably be expected to be material in the context of the issuance of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the nature of such information or event. The Company will likewise notify the Initial Purchasers of (i) any decrease in the rating of the Notes or any other debt securities of the Company by any nationally recognized statistical rating organization (as defined in Rule 436(g)(2) under the Securities Act) or (ii) any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its own expenserating of the Notes or such other debt securities, as soon as practicable after the Company becomes aware of any such decrease, notice or public announcement. For so long as the Notes are outstanding, the Company will also deliver to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will notsoon as available and without request, in the light copies of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities for offer its yearly and sale quarterly filings under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeExchange Act.
(f) None The Company will not, and will not permit any of its Affiliates to, resell any of the TrustNotes that have been acquired by any of them, other than pursuant to an effective registration statement under the Securities Act or in accordance with Rule 144 under the Securities Act.
(g) Except as contemplated in the Registration Rights Agreement, none of the Company or any of its Affiliates or Affiliates, nor any person acting on its or their behalf (other than the Initial PurchasersPurchasers or any of their respective Affiliates, as to whom the Company makes no covenant) will sellwill, offer for sale directly or indirectly, make offers or sales of any security, or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which security, under circumstances that would require the registration of the Notes under the Securities Act of the SecuritiesAct.
(gh) Not None of the Company or any of its Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to solicit any offer to buy or offer or sell whom the Securities by means of Company makes no covenant), will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2Regulation D) in connection with any offer or sale of the Securities ActNotes.
(hi) While So long as any of the Securities remain "Notes are “restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4144(a)(3) under the Securities Act, unless at any time that the Trust Company is not then subject to Section 13 or 15(d) of the Exchange Act, the Company will provide at its expense to each holder of the Notes and to each prospective purchaser (as designated by such holder) of the Notes, upon the request of such holder or prospective purchaser in connection with a sale of the Notes, any information required to be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be for the benefit of the holders, and the prospective purchasers designated by such holders from time to time, of the Notes.)
(ij) If requested by you, to The Company will use their commercially reasonable its best efforts to permit cause the Securities Notes to be designated PORTAL Private Offerings, Resales and Trading through Automated Linkages (“PORTAL”) market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Marketand to be eligible for clearance and settlement through DTC.
(jk) None The Company will apply the net proceeds from the sale of the TrustNotes as set forth under “Use of Proceeds” in the Offering Memorandum.
(l) Until completion of the distribution, neither the Company nor any of its Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which might reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
(m) For so long as any Notes are outstanding, each of the Company, the Guarantors and their subsidiaries will conduct its operations in a manner that will not subject the Company, the Guarantors or any such subsidiary to registration as an investment company under the Investment Company Act.
(n) Neither the Company nor any of its Affiliates, nor any person acting on its or their behalf (other than the Initial PurchasersPurchasers or their agents, as to which the Company makes no covenant) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the SecuritiesNotes, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) of them will comply with the offering restrictions requirement of Regulation S. Terms used in this paragraph have the meanings given them by Regulation S.
(ko) During Each Note will bear a legend substantially to the period of two years after following effect until such legend shall no longer be necessary or advisable because the Closing DateNotes are no longer subject to the restrictions on transfer described therein: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, the Trust AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, THE SECURITIES ACT, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS CONTAINED IN THE INDENTURE UNDER WHICH THIS NOTE WAS ISSUED.
(p) The Company will not, and will not permit directly or indirectly, offer, sell, contract to sell or otherwise dispose of any of its Affiliates to resell any debt securities of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any Company or warrants to purchase debt securities of themthe Company substantially similar to the Notes (other than the Notes offered pursuant to this Agreement) for a period of 180 days after the date hereof, without the prior written consent of Wachovia Capital Markets, LLC.
(lq) Not The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arms length contractual counterparty to take any action prohibited by Regulation M under the Exchange Act Company with respect to the offering of the Notes and the Guarantees contemplated hereby (including in connection with determining the distribution terms of the Securities offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, no Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Company with respect thereto. Any review by the Initial Purchasers of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Company.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each the Initial Purchaser as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchaser and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any “written communication” (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any supplements and amendments thereto as you report with the Commission under the Exchange Act relating to the offering of the New Notes or that may reasonably requestbe expected to impact the offering of the New Notes unless the Initial Purchaser shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchaser shall have given their consent, such consent not to be unreasonably withheld or delayed; provided that such consent shall not be necessary if the Company shall have been advised by counsel that the filing of such report is required by applicable law. The Company will promptly advise the Initial Purchaser when any document filed under the Exchange Act that is incorporated by reference in the Pricing Disclosure Package or the Final Memorandum shall have been filed with the Commission on or prior to the Closing Date. The Company will promptly, upon the reasonable request of the Initial Purchaser or counsel for the Initial Purchaser, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchaser.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchaser in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchaser may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securi- ties; provided, however, that in connection therewith, neither the Company nor any of the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchaser of the Securities, any event occurs or information becomes known to the Company as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchaser thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial PurchasersClosing Date, (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package or any Issuer Written Communication so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchaser thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchaser such amendments or supplements to any of the Final Memorandum Pricing Disclosure Package or any Issuer Written Communication as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchaser and to counsel for offer the Initial Purchaser as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchaser may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) None of the TrustCompany, its Affiliates the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, engage in any form of “general solicitation solicitation” or “general advertising advertising” (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(h) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities New Notes to be designated PORTAL securities in accordance with the rules eligible for clearance and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Marketsettlement through The Depository Trust Company.
(j) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of the Initial Purchaser, neither the Company nor any Guarantor will offer, sell, contract to sell or otherwise dispose of, except as provided hereunder or in the Registration Rights Agreement, any securities of the Company or any Guarantor (or guaranteed by the Company or any Guarantor) that are substantially similar to the Securities (other than Exchange Securities).
(k) In connection with Securities offered and sold in an “off-shore transaction” (as defined in Regulation S), the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the provisions of Regulation S and will not, except in accordance with the provisions of Regulation S, if applicable, issue any such Securities in the form of definitive securities.
(l) None of the TrustCompany, its Affiliates the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(lm) Not to take any action prohibited by Regulation M For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the Exchange Act in connection with Act) following the distribution date any Securities are acquired by the Company, the Guarantors or any of their Affiliates, none of the Company, the Guarantors or any of their Affiliates will sell any such Securities contemplated herebyexcept pursuant to an effective registration statement under the Act.
Appears in 1 contract
Samples: Purchase Agreement (Griffon Corp)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantorseach Guarantor, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Notes by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on neither the business day next succeeding Company nor the date of this Agreement Guarantors will amend or supplement the Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Notes (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) unless the Representative shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Representative shall have given its consent (such consent not to be unreasonably delayed, withheld or conditioned). The Company and the Guarantors will promptly, upon the reasonable request of the Representative or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchasers.
(b) Before amending The Company will cooperate with the Initial Purchasers in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Notes; provided, however, that in connection therewith, the Company and the Guarantors shall not be required to furnish to you qualify as a copy of each such proposed amendment foreign corporation or supplement and not to use other entity or as a dealer in securities in any such proposed amendment jurisdiction where it would not otherwise be required to so qualify or supplement to which you reasonably objectexecute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(ci) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold sale by the Initial PurchasersPurchasers of the Notes, any event shall occur occurs or condition exist information becomes known as a result of which the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to the Final Memorandum that corrects such statement or omission or effects such compliance and (ii) if at any time prior to the Closing Date (A) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Initial Purchasers, (B) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph 4(a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that the Final Memorandum, Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses as set forth under “Use of Proceeds” in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, Pricing Disclosure Package and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) For so long as any of the Notes remain outstanding, upon request by the Initial Purchasers, the Company will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or to the holders of the Securities unless at such time WSMM shall be subject to Section 13 or 15(d) of the Exchange Act and shall have filed all reports required to be filed pursuant to such sections and the related rules and regulations of the SEC.
(g) None of the TrustCompany, its the Guarantors nor any of their Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gh) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of their respective subsidiaries, Affiliates or offer or sell the Securities by means of persons acting on their behalf to, (i) engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Notes or (ii) engage in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hi) While For so long as any of the Securities Notes remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless at such time the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ij) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities Notes to be designated PORTAL eligible for clearance and settlement through DTC.
(k) During the period beginning on the date hereof and continuing to the date that is 60 days after the Closing Date, without the prior written consent of the Representative, the Company and the Guarantors will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company or the Guarantors (or guaranteed by the Company or the Guarantors) that are substantially similar to the Notes.
(l) In connection with Notes offered and sold in an offshore transaction (as defined in Regulation S) the Company will not register any transfer of such Notes not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Securities DealersRegulation S, Inc. relating to trading if applicable, issue any such Notes in the PORTAL Marketform of definitive securities.
(jm) None of the TrustCompany, its the Guarantors, nor any of their Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themNotes.
(ln) Not to take any action prohibited by Regulation M For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the Exchange Act in connection with Act) following the distribution date any Notes are acquired by the Company or any of their Affiliates, none of the Securities contemplated herebyCompany nor any of their Affiliates will sell any such Notes.
Appears in 1 contract
Samples: Purchase Agreement (WillScot Mobile Mini Holdings Corp.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each the Initial Purchaser as follows:
(a) To Until the later of (i) the completion of the distribution of the Securities by the Initial Purchaser and (ii) the Closing Date, the Company will not amend or supplement the Pricing Disclosure Package and the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Initial Purchaser shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchaser shall have given its consent (such consent not to be unreasonably withheld, conditioned or delayed). The Company will promptly, upon the reasonable request of the Initial Purchaser or counsel for the Initial Purchaser, make any amendments or supplements to the Pricing Disclosure Package and the Final Memorandum that may be necessary or advisable in connection with the resale of the Securities by the Initial Purchaser.
(b) The Company and the Guarantors will cooperate with the Initial Purchaser in arranging for the qualification of the Securities for offering and sale under the securities or “Blue Sky” laws of such jurisdictions as the Initial Purchaser may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities and the Guarantees; provided, however, that in connection therewith, none of the Company and the Guarantors shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchaser of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and the Final Memorandum to comply with applicable law, the Company will promptly notify the Initial Purchaser thereof and will prepare, at the expense of the Company, an amendment or supplement to the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or (ii) it is necessary to amend or supplement any of the Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with law, the Company will immediately notify the Initial Purchaser thereof and forthwith prepare and, subject to paragraph (a) above, furnish to you the Initial Purchaser such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum) as may be necessary so that the statements in New York Cityany of the Pricing Disclosure Package as so amended or supplemented will not, in light of the circumstances under which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented will comply with law.
(d) The Company will, without charge, prior provide to 3:00 p.m. New York City time on the business day next succeeding Initial Purchaser and to counsel for the date of this Agreement and during the period mentioned in Section 6(c), Initial Purchaser as many copies of the Pricing Disclosure Package, any Issuer Written Communication and the Final Memorandum and or any supplements and amendments amendment or supplement thereto as you the Initial Purchaser may reasonably request.
(be) Before amending or supplementing either The Company will apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Final Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(cf) If, during During such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist Purchaser (as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for determined by the Initial PurchasersPurchaser, it is necessary to amend or supplement but in no event more than 365 days after the Final Memorandum to comply with applicable lawdate hereof), forthwith to prepare and furnish, at its own expense, the Company will furnish to the Initial Purchasers, either amendments Purchaser copies of all reports and other communications (financial or supplements otherwise) furnished by the Company to the Final Memorandum so that Trustee or to the holders of the Securities and, upon request, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial Purchaser, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that Pricing Disclosure Package and the Final Memorandum, as amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fh) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, (1) engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or (2) engage in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hj) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ik) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through The Depository Trust Company.
(l) During the period beginning on the date hereof and continuing to the date that is 90 days after the Closing Date, without the prior written consent of Deutsche Bank Securities Inc. the Company and the Guarantors will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of any of the Company and the Guarantors (or guaranteed by any of the Company and the Guarantors) that are substantially similar to the Securities, in each case other than as contemplated by this Agreement.
(m) In connection with Securities offered and sold in an off shore transaction (as defined in Regulation S) the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading (including any related Guarantees) in the PORTAL Marketform of definitive securities.
(jn) None of the Trust, its Affiliates Company and the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S..
(ko) During the For a period of two years after one year (calculated in accordance with paragraph (d) of Rule 144 under the Closing DateAct) following the date any Securities are acquired by the Company or any of its affiliates (as defined in Rule 144 under the Act), the Trust Company will not, and will not permit such affiliates to, sell any of its Affiliates to resell any of the such Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M except in a transaction registered under the Exchange Act in connection with the distribution of the Securities contemplated herebyAct.
Appears in 1 contract
Samples: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each the Initial Purchaser as followsthat:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on None of the business day next succeeding Company or any of the date of this Agreement and during the period mentioned in Section 6(c), as many copies of Guarantors will amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchaser shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchaser shall not have given its consent, which consent shall not be unreasonably withheld. The Company and the Guarantors will promptly, upon the reasonable request of the Initial Purchaser or counsel to the Initial Purchaser, make any amendments or supplements and amendments thereto as you to the Preliminary Memorandum or the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Notes by the Initial Purchaser.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchaser in arranging for the qualification of the Notes for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of such jurisdictions as the Initial Purchaser may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the Notes; provided, however, that in connection therewith, the Company and the Guarantors shall not be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchaser of the Notes, the Exchange Notes or the Private Exchange Notes, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company and furnishthe Guarantors will promptly notify the Initial Purchaser thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and will prepare, at its own expensethe expense of the Company and the Guarantors, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that the statements in the Final Memorandum as so amended corrects such statement or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading omission or so that the Final Memorandum, as amended or supplemented, will comply with applicable laweffects such compliance.
(d) To endeavor The Company will, without charge, provide to qualify the Securities for offer Initial Purchaser and sale under to counsel to the securities Initial Purchaser as many copies of the Preliminary Memorandum and the Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchaser may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation Notes as set forth under "Use of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, Proceeds" in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(f) For and during the period commencing on the date hereof and ending on the date no Notes are outstanding, the Company will furnish to the Initial Purchaser copies of all reports and other communications (financial or otherwise) furnished by the Company to the Trustee or the holders of the Notes and, promptly after available, copies of any reports or financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company may be listed.
(g) Prior to the Time of Purchase, the Company will furnish to the Initial Purchaser, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum.
(h) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities Notes in a manner which would require the registration under the Securities Act of the SecuritiesNotes.
(gi) Not to The Company will not, and will not permit any of its Subsidiaries to, solicit any offer to buy or offer or to sell the Securities Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities ActAct and not salable in full under Rule 144 under the Act (or any successor provision), to the Company will make available, upon request, to any seller of such Securities Notes the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company and the Guarantors will use their best efforts to (i) If requested by you, to use their commercially reasonable efforts to permit the Securities Notes to be designated included for quotation on PORTAL securities in accordance with and (ii) permit the rules Notes to be eligible for clearance and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Marketsettlement through The Depository Trust Company.
(jl) None The Company and the Guarantors (to the extent a party thereto) will use their best efforts to do and perform all things required to be done and performed by them under this Agreement and the other Basic Documents prior to or after the Closing and to satisfy all conditions precedent on their part to the obligations of the Trust, its Affiliates or any person acting on its or their behalf Initial Purchaser to purchase and accept delivery of the Notes.
(other than the Initial Purchasersm) will engage In connection with Notes offered and sold in any directed selling efforts an offshore transaction (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) Company will comply not register any transfer of such Notes not made in accordance with the offering restrictions requirement provisions of Regulation S.
(k) During the period of two years after the Closing Date, the Trust S and will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act except in connection accordance with the distribution provisions of Regulation S, if applicable, issue any such Notes in the Securities contemplated herebyform of definitive securities.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of The Company and the agreements of Guarantors covenant and agree with the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant with each Initial Purchaser as followsthat:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. New York City time on Neither the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c), as many copies of Company nor any Guarantor will amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given its consent, which consent shall not be unreasonably withheld. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendments or supplements and amendments thereto as you to the Preliminary Memorandum or the Final Memorandum that may reasonably requestbe necessary or advisable in the opinion of the Initial Purchasers or counsel to the Initial Purchasers in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum"Blue Sky" laws of such jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the resale of the Securities; provided, however, that in connection therewith, none of the Company and the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each such proposed amendment process in any jurisdiction or supplement and not subject itself to use taxation in excess of a nominal dollar amount in any such proposed amendment or supplement to which you reasonably objectjurisdiction where it is not then so subject.
(c) If, during such period after the date hereof and at any time prior to the date on which all completion of the Securities shall have been sold distribution by the Initial PurchasersPurchasers of the Securities, the Exchange Notes or the Private Exchange Notes, any event shall occur occurs or condition exist information becomes known as a result of which it is necessary to amend or supplement the Final Memorandum in order as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel if for the Initial Purchasers, any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare the Company and furnishthe Guarantors will promptly no- 28 -25- tify the Initial Purchasers thereof (who thereafter will not use such Final Memorandum until appropriately amended or supplemented) and will prepare, at its own expensethe expense (subject to Section 6.1 of this Agreement) of the Company and the Guarantors, to the Initial Purchasers, either amendments an amendment or supplements supplement to the Final Memorandum so that corrects such statement or omission or effects such compliance; provided, however, that the statements obligations of the Company and the Guarantors hereunder shall not be applicable to the extent resale by the Initial Purchasers may be accomplished pursuant to a Registration Statement (as defined in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable lawRegistration Rights Agreement).
(d) To endeavor The Company will, without charge, provide to qualify the Securities for offer Initial Purchasers and sale under to counsel to the securities Initial Purchasers as many copies of the Preliminary Memorandum and the Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Initial Purchasers may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For and during the period ending on the date no Securities are outstanding, the Company will furnish to the Initial Purchasers copies of all reports and other fees communications (financial or expenses in connection otherwise) furnished by the Company or any Guarantor to the Trustee or the holders of the Securities and, promptly after available, copies of any reports or financial statements furnished to or filed by the Company or any of its Subsidiaries with the preparation Commission or any national securities exchange on which any class of each Memorandum and all amendments and supplements theretosecurities of the Company or any of its Subsidiaries may be listed.
(g) Prior to the Time of Purchase, including all printing costs associated therewith, and the delivering of copies thereof Company will furnish to the Initial Purchasers, in the quantities herein above specifiedas soon as they have been prepared, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company and its Subsidiaries for any period subsequent to the Guarantors relating to investor presentations on any "road show" undertaken period covered by the most recent financial statements appearing in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to The Company will not, and will not permit any of its Subsidiaries to, solicit any offer to buy or offer or to sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company and the Guarantors will use their best efforts to (i) If requested by you, to use their commercially reasonable efforts to permit the Securities Notes to be designated included for quotation on PORTAL securities in accordance with and (ii) permit the rules Notes to be eligible for clearance and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the settlement through The Depository Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themCompany.
(l) Not The Company and the Guarantors will use their best efforts to take any action prohibited do and perform all things required to be done and performed by Regulation M them under this Agreement and the Exchange Act in connection with other Basic Documents prior to or after the distribution Closing and to satisfy all conditions precedent on its part to the obligations of the Securities contemplated herebyInitial Purchasers to purchase and accept delivery of the Securities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Carpenter W R North America Inc)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser Underwriter as follows:
(a) To furnish to you in New York Cityyou, without charge, prior a signed copy of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and to 3:00 p.m. New York City time on deliver to each of the business day next succeeding the date of this Agreement and Underwriters during the period mentioned in Section 6(c)6(e) or 6(f) below, as many copies of the Final Memorandum Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing either Memorandumthe Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to use file any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense (provided, however, that after nine months from the date of the Prospectus, any such preparation, filing and furnishing shall be at the expense of the Underwriters), to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date hereof and prior to of the date on which all public offering of the Securities shall have been sold as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by the Initial Purchaserslaw to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum Prospectus in order to make the statements therein, in the light of the circumstances when the Final Memorandum Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial PurchasersUnderwriters, it is necessary to amend or supplement the Final Memorandum Prospectus to comply with applicable law, forthwith to prepare prepare, file with the Commission and furnish, at its own expense, to the Initial PurchasersUnderwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Final Memorandum Prospectus so that the statements in the Final Memorandum Prospectus as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Final MemorandumProspectus, as amended or supplemented, will comply with applicable law.
(dg) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that the Company shall not be required to qualify as a foreign corporation, to take any action that would subject it to the service of process (except service of process with respect to the offering of the Securities) or to subject itself to taxation in excess of a normal amount under the laws of any such jurisdiction.
(eh) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance registration and sale delivery of the Securities under the Securities Act and the issuance and delivery of Common Stock upon conversion of the Notes and all other fees or expenses in connection with the preparation and filing of each Memorandum the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and all amendments and supplements theretoto any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456 (b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Initial PurchasersUnderwriters and dealers, in the quantities herein above hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(g) hereof, including filing fees and the reasonable and documented out-of-pocket fees and disbursements of one primary counsel and any reasonably necessary local counsel for the Initial Purchasers Underwriters in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) all filing fees and the reasonable and documented out-of-pocket fees and disbursements of one primary counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by FINRA, (v) any fees charged by the rating agencies for the rating of the Securities, (iiivi) the fees and expenses, if any, incurred in connection with the admission cost of the Securities for trading in PORTALpreparation, issuance and delivery of the Securities, (ivvii) the costs and charges of the Trustee and any trustee, transfer agent, registrar or depositary, (vviii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production preparation or dissemination of any electronic road show slides and graphics, fees and expenses of any consultants engaged in connection with the electronic road show presentations with the prior approval of the Company Company, (ix) the document production charges and the Guarantorsexpenses associated with printing this Agreement, travel (x) all expenses and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered fees in connection with the road showapplication for listing of the Maximum Number of Shares on the NYSE, subject to official notice of issuance, and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, 8 entitled “Indemnity and Contribution,” and the last paragraph of Section 1010 below, the Initial Purchasers will Underwriters shall pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fj) None If the third anniversary of the Trust, its Affiliates or any person acting on its or their behalf (other than initial effective date of the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Registration Statement occurs before all the Securities Act) which could be integrated with have been sold by the sale Underwriters, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities in a manner which would require to continue without interruption; references herein to the Registration Statement shall include the new registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted statement declared effective by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.Commission;
(k) During the period of two years after beginning on the date hereof and continuing to and including (x) the First Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Trust will notCompany or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities (other than commercial paper issued in the ordinary course of business) without the prior written consent of the Manager identified in Schedule I with the authorization to release this lock-up on behalf of the Underwriters, and will (y) the date that is 90 days after the date of the Prospectus (such 90-day period, the “Lock-Up Period), not permit to, directly or indirectly, (i) offer for sale, sell, pledge, or otherwise dispose of any shares of its Affiliates Common Stock or securities convertible into or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other derivatives transaction that transfers to resell another, in whole or in part, any of the Securities which constitute "restricted economic benefits or risks of ownership of shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities" under Rule 144 that have been reacquired by , in cash or otherwise, or (iii) publicly disclose the intention to do any of themthe foregoing, in each case, without the prior written consent of the Manager identified in Schedule I with the authorization to release this lock-up on behalf of the Underwriters; provided that the restrictions in clause (x) and (y) shall not apply to (A) the issuance of the Securities to be sold hereunder, (B) the issuance of Common Stock upon conversion of the Notes being sold hereunder, (C) the issuance of Common Stock upon the exercise of an option, warrant or other similar right, or the conversion of a security outstanding on the date hereof, (D) grants, issuances or exercises under any existing employee benefit plans and the 2012 Long-Term Incentive Plan, (E) the filing of a registration statement on Form S-8 relating to shares of Common Stock issued under any existing employee benefit plans, (F) offers or agreements to issue Common Stock or securities exchangeable for, exercisable for or convertible into shares of Common Stock in connection with the acquisition of, or joint venture with, another company or the settlement of a claim; provided that no issuance of securities pursuant to such offers or agreements may occur until the expiration of the Lock-Up Period; (G) the repurchase of any 2.375% Convertible Senior Notes due 2015 and 3.25% Convertible Senior Notes due 2015 and (H) grants, issuances or exercises pursuant to a written trading plan designed to comply with Rule 10b5-1 of the Exchange Act existing on or prior to the date hereof, provided that no sales or other dispositions may occur under such plans until the expiration of the Lock-Up Period.
(l) Not To prepare a final term sheet relating to take any action prohibited by Regulation M under the Exchange Act in connection with offering of the distribution Securities, containing only information that describes the final terms of the Securities contemplated herebyor the offering in a form consented to by the Manager (which consent shall not be unreasonably withheld or delayed), and to file with the Commission such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(m) To list, subject to notice of issuance, a number of shares of Common Stock equal to the Maximum Number of Shares on the NYSE by the First Closing Date, and to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, registrar for the Common Stock.
(n) To reserve and keep available at all times, free of preemptive rights, the Maximum Number of Shares.
(o) Between the date hereof and the later of (i) the First Closing Date and (ii) the Option Closing Date, if any, that is latest in time, the Company will not do or authorize any act or thing that would, if it occurred after such Closing Date, result in an adjustment of the conversion rate for the Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Alpha Natural Resources, Inc.)
Covenants of the Company and the Guarantors. In further consideration of The Company and the agreements Guarantors jointly and severally covenant and agree with each of the Initial Purchasers contained in this Agreement, the Company and the Guarantors, jointly and severally, covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any “written communication” (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement and as to which the Initial Purchasers shall have given their consent. The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities and the Guarantees; provided, however, that in connection therewith, none of the Company and the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, Closing Date (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Representative may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and all other fees communications (financial or expenses in connection otherwise) furnished by the Company to the Trustee or to the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Company with the preparation Commission or any national securities exchange on which any class of each Memorandum and all amendments and supplements theretosecurities of the Company may be listed.
(g) Prior to the Closing Date, including all printing costs associated therewith, and the delivering of copies thereof Company will furnish to the Initial Purchasers, as soon as they have been prepared, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the quantities herein above specified, all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees Pricing Disclosure Package and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expensesFinal Memorandum, if any, incurred in connection with the admission of the Securities for trading in PORTAL, .
(ivh) the costs and charges of the Trustee and (v) the costs and expenses None of the Company and the Guarantors relating to investor presentations on or any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(f) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, engage in any form of “general solicitation solicitation” or “general advertising advertising” (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a “public offering offering” within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ik) If requested by you, to The Company will use their commercially reasonable efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through The Depository Trust Company.
(l) During the period beginning on the date hereof and continuing to the date that is 30 days after the Closing Date, without the prior written consent of the Representative, the Company and the Guarantors will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of any of the Company and the Guarantors (or guaranteed by any of the Company and the Guarantors) that are substantially similar to the Securities.
(m) In connection with Securities offered and sold in an “off-shore transaction” (as defined in Regulation S) the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading (including any related Guarantees) in the PORTAL Marketform of definitive securities.
(jn) None of the Trust, its Affiliates Company and the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will engage in any “directed selling efforts efforts” (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(lo) Not to take any action prohibited by Regulation M For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the Exchange Act in connection with Act) following the distribution date any Securities are acquired by the Company and the Guarantors or any of their Affiliates, none of the Securities contemplated herebyCompany and the Guarantors or any of their Affiliates will sell any such Securities.
Appears in 1 contract
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each of the Initial Purchaser Purchasers as follows:
(a) To furnish to you in New York CityUntil the later of (i) the completion of the distribution of the Securities by the Initial Purchasers and (ii) the Closing Date, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding Company will not amend or supplement the date of this Agreement Pricing Disclosure Package and during the period mentioned in Section 6(c), as many copies of the Final Memorandum or otherwise distribute or refer to any written communication (as defined under Rule 405 of the Act) that constitutes an offer to sell or a solicitation of an offer to buy the Securities (other than the Pricing Disclosure Package, the Recorded Road Show and the Final Memorandum) or file any report with the Commission under the Exchange Act unless the Initial Purchasers shall previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment, supplement or report and as to which the Initial Purchasers shall have given their consent (such consent not to be unreasonably withheld, conditioned or delayed). The Company will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the Pricing Disclosure Package and amendments thereto as you the Final Memorandum that may reasonably requestbe necessary or advisable in connection with the resale of the Securities by the Initial Purchasers.
(b) Before amending The Company and the Guarantors will cooperate with the Initial Purchasers in arranging for the qualification of the Securities for offering and sale under the securities or supplementing either Memorandum“Blue Sky” laws of which jurisdictions as the Initial Purchasers may designate and will continue such qualifications in effect for as long as may be necessary to complete the resale of the Securities and the Guarantees; provided, however, that in connection therewith, none of the Company and the Guarantors shall be required to furnish qualify as a foreign corporation or to you execute a copy general consent to service of each process in any jurisdiction or subject itself to taxation in excess of a nominal dollar amount in any such proposed amendment jurisdiction where it is not then so subject.
(1) If, at any time prior to the completion of the sale by the Initial Purchasers of the Securities or the Private Exchange Notes, any event occurs or information becomes known as a result of which the Pricing Disclosure Package and the Final Memorandum as then amended or supplemented would include any untrue statement of a material fact, or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any other reason it is necessary at any time to amend or supplement the Pricing Disclosure Package and not the Final Memorandum to use any such proposed comply with applicable law, the Company will promptly notify the Initial Purchasers thereof and will prepare, at the expense of the Company, an amendment or supplement to which you reasonably object.
the Pricing Disclosure Package and the Final Memorandum that corrects such statement or omission or effects such compliance and (c2) If, during such period after the date hereof and if at any time prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, Closing Date (i) any event shall occur or condition shall exist as a result of which it is any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleadingmisleading or any Issuer Written Communication would conflict with the Pricing Disclosure Package as then amended or supplemented, or if, in the opinion of counsel for the Initial Purchasers, (ii) it is necessary to amend or supplement any of the Final Memorandum to Pricing Disclosure Package so that any of the Pricing Disclosure Package or any Issuer Written Communication will comply with applicable law, the Company will immediately notify the Initial Purchasers thereof and forthwith prepare and, subject to prepare and furnishparagraph (a) above, at its own expense, furnish to the Initial Purchasers, either Purchasers such amendments or supplements to any of the Pricing Disclosure Package or any Issuer Written Communication (it being understood that any such amendments or supplements may take the form of an amended or supplemented Final Memorandum Memorandum) as may be necessary so that the statements in any of the Final Memorandum Pricing Disclosure Package as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, be misleading or so that any Issuer Written Communication will not conflict with the Final Memorandum, Pricing Disclosure Package or so that the Pricing Disclosure Package or any Issuer Written Communication as so amended or supplemented, supplemented will comply with applicable law.
(d) To endeavor The Company will, without charge, provide to qualify the Securities Initial Purchasers and to counsel for offer the Initial Purchasers as many copies of the Pricing Disclosure Package, any Issuer Written Communication and sale under the securities Final Memorandum or Blue Sky laws of such jurisdictions any amendment or supplement thereto as you shall the Representative may reasonably request.
(e) Whether or not The Company will apply the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to net proceeds from the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package and the Final Memorandum.
(f) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers copies of all reports and all other fees communications (financial or expenses in connection otherwise) furnished by the Company to the Trustee or to the holders of the Securities and, upon request, copies of any reports or financial statements furnished to or filed by the Company with the preparation Commission or any national securities exchange on which any class of each Memorandum and all amendments and supplements theretosecurities of the Company may be listed.
(g) Prior to the Closing Date, including all printing costs associated therewith, and the delivering of copies thereof Company will furnish to the Initial Purchasers, in the quantities herein above specifiedas soon as they have been prepared, all expenses in connection with the qualification a copy of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Pricing Disclosure Package and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeFinal Memorandum.
(fh) None of the Trust, Company or any of its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security “security” (as defined in the Securities Act) which that could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gi) Not to solicit The Company and the Guarantors will not, and will not permit any offer to buy of the Subsidiaries or offer their respective Affiliates or sell the Securities by means of persons acting on their behalf to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hj) While For so long as any of the Securities remain "restricted securities" within outstanding, the meaning of the Securities Act, to Company will make availableavailable at its expense, upon request, to any seller holder of such Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(ik) If requested by you, to The Company will use their its commercially reasonable efforts to permit the Securities to be designated PORTAL eligible for clearance and settlement through The Depository Trust Company.
(l) During the period beginning on the date hereof and continuing to the date that is 180 days after the Closing Date, without the prior written consent of Deutsche Bank Securities Inc. the Company and the Guarantors will not offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of any of the Company and the Guarantors (or guaranteed by any of the Company and the Guarantors) that are substantially similar to the Securities.
(m) In connection with Securities offered and sold in an off shore transaction (as defined in Regulation S) the Company and the Guarantors will not register any transfer of such Securities not made in accordance with the rules provisions of Regulation S and regulations adopted by will not, except in accordance with the National Association provisions of Regulation S, if applicable, issue any such Securities Dealers, Inc. relating to trading (including any related Guarantees) in the PORTAL Marketform of definitive securities.
(jn) None of the Trust, its Affiliates Company and the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) Affiliates will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, .
(o) For a period of one year (calculated in accordance with paragraph (d) of Rule 144 under the Act) following the date any Securities are acquired by the Company and the TrustGuarantors or any of their Affiliates, its none of the Company and the Guarantors or any of their Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.sell any such Securities.
(kp) During The Company shall apply the period of two years after net proceeds from the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any sale of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired sold by any of them.
(l) Not to take any action prohibited by Regulation M it in the manner described under the Exchange Act caption “Use of Proceeds” in connection with the distribution of the Securities contemplated herebyPricing Disclosure Package.
Appears in 1 contract
Samples: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant with each the Initial Purchaser as follows:
(a) To furnish to you the Initial Purchaser in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d) or (e), as many copies of the Final Memorandum and any supplements and amendments thereto as you the Initial Purchaser may reasonably request.
(b) Before amending or supplementing either the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum, to furnish to you the Initial Purchaser a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably objectthe Initial Purchaser objects.
(c) To furnish to the Initial Purchaser a copy of each proposed Additional Written Offering Communication to be prepared by or on behalf of, used by, or referred to by the Company or the Guarantors and not to use or refer to any proposed Additional Written Offering Communication to which the Initial Purchaser reasonably objects.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Initial Purchaser, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchaser and to any dealer upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial PurchasersPurchaser, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial PurchasersPurchaser, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial PurchasersPurchaser, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(df) To endeavor furnish such information as may be reasonably required and otherwise to cooperate with the Initial Purchaser to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you the Initial Purchaser shall reasonably request; provided, however, that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of, or subject itself to taxation as doing business in, any such state or other jurisdiction (except service of process with respect to the offering and sale of the Securities).
(eg) To apply the net proceeds from the sale of the Securities in accordance with the statements under the caption “Use of Proceeds” in the Preliminary Memorandum, the Time of Sale Memorandum and the Final Memorandum.
(h) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's ’s and EnCana's Guarantors’ accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each Memorandum the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or referred to by the Company or the Guarantors and all any amendments and supplements theretoto any of the foregoing, including all printing costs associated therewith, and the delivering of copies thereof to the Initial PurchasersPurchaser, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Initial Purchaser, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers Purchaser, in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTALany appropriate market system, (ivvi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vvii) the cost of the preparation, issuance and delivery of the Securities, (viii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and or the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the any road show, (ix) the document production charges and expenses associated with printing this Agreement and (x) all other cost and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section 6. It is understood, however, that except as provided in this SectionSection 6 (and subject to the aggregate limit of $100,000 for out-of-pocket expenses reimbursed by the Company to the Initial Purchaser pursuant to this Section 6), Section 8, and the last paragraph of Section 10, the Initial Purchasers Purchaser will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fi) None Neither the Company, the Guarantors nor any of the Trust, its their respective Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gj) Not to solicit any offer to buy or offer or sell the Securities or the Underlying Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act.
(hk) While any of the Securities or the Underlying Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(kl) During the period of two years after the Closing Date, the Trust will not, and Company will not permit any of its Affiliates be, nor will it become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to resell any be registered under Section 8 of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themInvestment Company Act.
(lm) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby. The Company also agrees that, without the prior written consent of the Initial Purchaser, it will not, during the period ending 90 days after the date of the Final Memorandum ( the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of common stock of the Company or any securities convertible into or exercisable or exchangeable for common stock of the Company or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the common stock of the Company, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of common stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the sale of the Securities under this Agreement, (b) the issuance by the Company of any shares of common stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof as disclosed in the Company’s filings with the Commission, (c) issuances of options or grants of restricted stock under the Company’s stock option and incentive plans, or (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of common stock, provided that (i) such plan does not provide for the transfer of common stock during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of common stock may be made under such plan during the Restricted Period.
Appears in 1 contract
Samples: Convertible Note Initial Purchaser Agreement (Digital Turbine, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreementherein contained, the Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 12:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c)) below, as many copies of the Final Memorandum Memorandum, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either Memorandum, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchasers, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnish, at its own expense, to the Initial Purchasers, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(d) To endeavor cooperate with you and your counsel to qualify the Securities for offer and sale under the state securities or Blue Sky laws of such jurisdictions as you shall reasonably requestrequest and to continue such qualification in effect until the completion of the resale of the Securities by the Initial Purchasers; provided, however, that neither the Company nor any Guarantor shall be required in connection therewith to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to service of process in suits or to taxation in any jurisdiction where it is not now so subject.
(e) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: :
(i) the fees, disbursements and expenses of the Company's counsel and accountants of the Company and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants Guarantors in connection with the issuance and sale of the Securities and all other fees or printing and distribution expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including ;
(ii) all printing costs associated therewith, and expenses related to the delivering transfer and delivery of copies thereof the Securities to the Initial Purchasers, including any transfer or other taxes payable thereon; (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the quantities herein above specified, offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by rating agencies for the rating of the Securities, (iii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL, (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(f) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the Trust will not, and will not permit any of its Affiliates to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(l) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.;
Appears in 1 contract
Samples: Purchase Agreement (Lear Corp /De/)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, Guarantors covenant with each Initial Purchaser Underwriter as follows:
(a) To furnish to you in New York Cityyou, without charge, prior a signed copy of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and to 3:00 p.m. New York City time on deliver to each of the business day next succeeding the date of this Agreement and Underwriters during the period mentioned in Section 6(c)6(e) or 6(f) below, as many copies of the Final Memorandum Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing either Memorandumthe Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to use file any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense (provided, however, that after nine months from the date of the Prospectus, any such preparation, filing and furnishing shall be at the expense of the Underwriters), to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date hereof and prior to of the date on which all public offering of the Securities shall have been sold as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by the Initial Purchaserslaw to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum Prospectus in order to make the statements therein, in the light of the circumstances when the Final Memorandum Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial PurchasersUnderwriters, it is necessary to amend or supplement the Final Memorandum Prospectus to comply with applicable law, forthwith to prepare prepare, file with the Commission and furnish, at its own expense, to the Initial PurchasersUnderwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Final Memorandum Prospectus so that the statements in the Final Memorandum Prospectus as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Final MemorandumProspectus, as amended or supplemented, will comply with applicable law.
(dg) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that the Company shall not be required to qualify as a foreign corporation, to take any action that would subject it to the service of process (except service of process with respect to the offering of the Securities) or to subject itself to taxation in excess of a normal amount under the laws of any such jurisdiction.
(eh) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's and the Guarantors' ’s counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance registration and sale delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of each Memorandum the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and all amendments and supplements theretoto any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456 (b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Initial PurchasersUnderwriters and dealers, in the quantities herein above hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(g) hereof, including filing fees and the reasonable and documented out-of-pocket fees and disbursements of one primary counsel and any reasonably necessary local counsel for the Initial Purchasers Underwriters in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) all filing fees and the reasonable and documented out-of-pocket fees and disbursements of one primary counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by FINRA, (v) any fees charged by the rating agencies for the rating of the Securities, (iiivi) the fees and expenses, if any, incurred in connection with the admission cost of the Securities for trading in PORTALpreparation, issuance and delivery of the Securities, (ivvii) the costs and charges of the Trustee and any trustee, transfer agent, registrar or depositary, (vviii) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production preparation or dissemination of any electronic road show slides and graphics, fees and expenses of any consultants engaged in connection with the electronic road show presentations with the prior approval of the Company Company, (ix) the document production charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the Guarantors, travel and lodging expenses performance of the representatives and officers obligations of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered hereunder for which provision is not otherwise made in connection with the road showthis Section. It is understood, however, that except as provided in this Section, Section 8, 8 entitled “Indemnity and Contribution,” and the last paragraph of Section 1010 below, the Initial Purchasers will Underwriters shall pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fj) None If the third anniversary of the Trust, its Affiliates or any person acting on its or their behalf (other than initial effective date of the Initial Purchasers) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Registration Statement occurs before all the Securities Act) which could be integrated with have been sold by the sale Underwriters, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities in a manner which would require to continue without interruption; references herein to the Registration Statement shall include the new registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities" within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust is then subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use their commercially reasonable efforts to permit the Securities to be designated PORTAL securities in accordance with the rules and regulations adopted statement declared effective by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Trust, its Affiliates or any person acting on its or their behalf (other than the Initial Purchasers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) will comply with the offering restrictions requirement of Regulation S.Commission;
(k) During the period of two years after beginning on the date hereof and continuing to and including the Closing Date, the Trust will notnot to offer, and will not permit sell, contract to sell or otherwise dispose of any of its Affiliates to resell any debt securities of the Company or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any (other than (i) the Securities, (ii) commercial paper issued in the ordinary course of thembusiness, (iii) securities or warrants permitted with the prior written consent of the Manager identified in Schedule I with the authorization to release this lock-up on behalf of the Underwriters or (iv) the cash tender offer for the 3.25% Senior Convertible Notes due 2015 pursuant to the Offer to Purchase, dated September 27, 2012).
(l) Not To prepare a final term sheet relating to take any action prohibited by Regulation M under the Exchange Act in connection with offering of the distribution Securities, containing only information that describes the final terms of the Securities contemplated herebyor the offering in a form consented to by the Manager (which consent shall not be unreasonably withheld or delayed), and to file with the Commission such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Alpha Natural Resources, Inc.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers Placement Agents contained in this Agreement, the Company and and, upon execution of the GuarantorsJoinder Agreement, each Guarantor (unless otherwise indicated below), jointly and severally, covenant agree with each Initial Purchaser Placement Agent as follows:
(a) To furnish to you in New York City, without charge, prior to 3:00 p.m. 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(c6(d), as many copies of the Time of Sale Memorandum, the Preliminary Memorandum and the Final Memorandum Memorandum, and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing either the Time of Sale Memorandum, the Preliminary Memorandum or the Final Memorandum at any time prior to the completion of the initial offering by the Placement Agents, to furnish to you a copy of each such proposed amendment or supplement and not to use any such proposed amendment or supplement to which you reasonably object.
(c) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a time when the Final Memorandum is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Memorandum in order to make the statements therein, in the light of the circumstances, not misleading, or if, in the opinion of counsel for the Placement Agents, it is necessary to amend or supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and furnish, at the Company’s own expense, to the Placement Agents upon request, either amendments or supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or supplemented, will comply with law.
(d) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial PurchasersPlacement Agents, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Initial PurchasersPlacement Agents, it is necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to prepare and furnishsubmit, at its the Company’s own expense, to the Initial PurchasersStock Exchange for its approval and to the Placement Agents, either amendments or supplements to the Final Memorandum so that the statements in the Final Memorandum as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable law.
(de) To use its best efforts to procure and maintain the listing of the Senior Subordinated Notes on the Stock Exchange and to maintain such listing and do or cause to be done all such acts, to provide all such information, to pay such fees, to give such undertakings and to execute all such documents as shall be necessary or required by the Stock Exchange for the purpose of or in connection with the application for listing the Senior Subordinated Notes on the Stock Exchange or the maintenance of such listings.
(f) To notify the Placement Agents of any communication received prior to the completion (as determined by the Placement Agents) of the distribution of the Senior Subordinated Notes from the Stock Exchange or any other governmental authority or regulatory body or agency which may have a material adverse effect on the offering or distribution of the Senior Subordinated Notes or relating to the form, content or use of the Final Memorandum and to provide the Placement Agents with copies of any such communication which is in writing.
(g) To endeavor to cooperate with the Placement Agents and their counsel to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(eh) Whether or not the transactions Transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's ’s and the Guarantors' ’ counsel and the Company's, Storm's and EnCana's ’s accountants in connection with the issuance and sale of the Securities and all other fees or expenses in connection with the preparation of each the Time of Sale Memorandum, the Preliminary Memorandum and the Final Memorandum, and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial PurchasersPlacement Agents, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Placement Agents, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(d6(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers Placement Agents in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (iiiv) any fees charged by rating agencies for the rating of the Securities, (iiiv) the fees and expenses, if any, incurred in connection with (a) the admission of the Securities Senior Notes for trading in PORTALPORTAL or any appropriate market system and (b) the listing of the Senior Subordinated Notes on the Stock Exchange, (ivvi) the costs and charges of the Trustee Trustees, any paying agent, any listing agent and any transfer agent, registrar or depositary, (vvii) the cost of the preparation, issuance and delivery of the Securities, (viii) fifty percent of the costs and expenses of the Company and the Guarantors relating to investor presentations on any "“road show" ” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the GuarantorsCompany, travel and lodging expenses of the representatives and officers of the Company and the Guarantors Guarantors, and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement, (x) all expenses in connection with any offer and sale of the Securities outside of the United States, including all filing fees and the reasonable fees and disbursements of counsel for the Placement Agents in connection with offers and sales outside of the United States, and (xi) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers Placement Agents will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(fi) None of the TrustCompany, its Affiliates any of the Guarantors or any person acting on its or of their behalf (other than the Initial Purchasers) respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities.
(gj) Not to solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(hk) While any of the Securities remain "“restricted securities" ” within the meaning of the Securities Act, to make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Trust Company is then subject to Section 13 or 15(d) of the Exchange Act.
(il) If requested by you, to use their commercially reasonable its best efforts to permit the Securities (i) Senior Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. NASD relating to trading in the PORTAL Market, and (ii) the Senior Subordinated Notes to be listed on the Stock Exchange.
(jm) None of the TrustCompany, its the Guarantors, their respective Affiliates or any person acting on its or their behalf (other than the Initial PurchasersPlacement Agents) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Securities, and the TrustCompany, its the Guarantor and their respective Affiliates and each person acting on its or their behalf (other than the Initial PurchasersPlacement Agents) will comply with the offering restrictions requirement of Regulation S.
(kn) During the period of two years after the Closing Date, the Trust Company will not, and will not permit any of its Affiliates affiliates (as defined in Rule 144 under the Securities Act) to resell any of the Securities Securities, which constitute "“restricted securities" ” under Rule 144 that have been reacquired by any of them.
(lo) Not to None of the Company, the Guarantors, or any of their respective Affiliates will take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(p) The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Initial Purchasers’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Preliminary Offering Memorandum, the Time of Sale Memorandum and the Offering Memorandum.
Appears in 1 contract
Samples: Placement Agreement (Sensata Technologies Holland, B.V.)
Covenants of the Company and the Guarantors. In further consideration of the agreements of the Initial Purchasers contained in this Agreement, the The Company and the Guarantors, jointly and severally, covenant and agree with each the Initial Purchaser as followsthat:
(a) To The Company will furnish to you in New York Citythe Initial Purchaser and to Counsel for the Initial Purchaser, as soon as reasonably possible, without charge, prior to 3:00 p.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned referred to in Section 6(c)paragraph (c) below, as many copies of the Final Memorandum and any amendments and supplements and amendments thereto as you they reasonably may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering of the Notes and will reimburse the Initial Purchaser for payment of the required PORTAL (as defined below) filing fee.
(b) Before amending or supplementing either Memorandum, to furnish to you a copy of each such proposed amendment or supplement and The Company will not to use any such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the date on which all of the Securities shall have been sold by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Final Memorandum in order prior to the completion of the distribution of the Notes by the Initial Purchaser without its prior written consent, which consent will not be unreasonably withheld or delayed.
(c) At any time prior to the completion of the distribution of the Notes by the Initial Purchaser, if any event occurs as a result of which the Final Memorandum, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the Final Memorandum is delivered to a purchaserunder which they were made, not misleading, or if, in the opinion of counsel for the Initial Purchasers, if it is should be necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith the Company will promptly (i) notify the Initial Purchaser of the same; (ii) subject to the requirements of paragraph (b) of this Section 5, prepare and furnish, at its own expense, provide to the Initial PurchasersPurchaser pursuant to paragraph (a) of this Section 5, either amendments an amendment or supplements supplement that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented or amended Final Memorandum to the Final Memorandum so that Initial Purchaser and Counsel for the statements Initial Purchaser, without charge in the Final Memorandum such quantities as so amended or supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to a purchaser, may be misleading or so that the Final Memorandum, as amended or supplemented, will comply with applicable lawreasonably requested.
(d) To endeavor to The Company will (i) qualify the Securities Notes and the Note Guarantees for offer and sale by the Initial Purchaser under the securities or Blue Sky laws of such jurisdictions as you shall reasonably requestthe Initial Purchaser may designate and (ii) will maintain such qualifications for so long as required for the sale of the Notes by the Initial Purchaser; provided, that the Company will not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject. The Company will promptly advise the Initial Purchaser of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(e) Whether At any time prior to the completion of the distribution of the Notes by the Initial Purchaser, the Company, whenever it, the Guarantors or not any of their subsidiaries publishes or makes available to the transactions contemplated in this Agreement are consummated public (by filing with any regulatory authority or this Agreement is terminated, to pay securities exchange or cause by publishing a press release or otherwise) any information that would reasonably be expected to be paid all expenses incident to material in the performance context of its obligations the issuance of the Notes under this Agreement, including: shall promptly notify the Initial Purchaser as to the nature of such information or event. The Company will likewise notify the Initial Purchaser of (i) any decrease in the fees, disbursements and expenses rating of the Company's and the Guarantors' counsel and the Company's, Storm's and EnCana's accountants in connection with the issuance and sale Notes or any other debt securities of the Securities and all other fees or expenses Company by any nationally recognized statistical rating organization (as defined in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the delivering of copies thereof to the Initial Purchasers, in the quantities herein above specified, all expenses in connection with the qualification of Rule 436(g)(2) under the Securities for offer and sale under state securities laws as provided in Section 6(dAct) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with the preparation of the Blue Sky or legal investment memorandum, (ii) any fees charged by notice or public announcement given of any intended or potential decrease in any such rating agencies for the or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the SecuritiesNotes or such other debt securities, (iii) as soon as is reasonably practicable after the fees Company becomes aware of any such decrease, notice or public announcement. For so long as the Notes are outstanding, the Company will also deliver to the Initial Purchaser, as soon as available and expenseswithout request, if any, incurred in connection with the admission copies of its yearly and quarterly filings under the Securities for trading in PORTAL, Exchange Act of 1934 (iv) the costs and charges of the Trustee and (v) the costs and expenses of the Company and the Guarantors relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company and the Guarantors, travel and lodging expenses of the representatives and officers of the Company and the Guarantors and any such consultants, and the cost of any aircraft chartered in connection with the road show. It is understood, however, that except as provided in this Section, Section 8, and the last paragraph of Section 10, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may makeExchange Act").
(f) None The Company will not, and will not permit any of its Affiliates to, resell any of the TrustNotes that have been acquired by any of them, other than pursuant to an effective registration statement under the Securities Act or in accordance with Rule 144 under the Securities Act.
(g) Except as contemplated in the Registration Rights Agreement, none of the Company or any of its Affiliates or Affiliates, nor any person acting on its or their behalf (other than the Initial PurchasersPurchaser or any of its Affiliates, as to whom the Company makes no covenant) will sellwill, offer for sale directly or indirectly, make offers or sales of any security, or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which security, under circumstances that would require the registration of the Notes under the Securities Act of the SecuritiesAct.
(gh) Not None of the Company or any of its Affiliates, nor any person acting on its or their behalf (other than the Initial Purchaser or any of its Affiliates, as to solicit any offer to buy or offer or sell whom the Securities by means of Company makes no covenant), will engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2Regulation D) in connection with any offer or sale of the Securities ActNotes.
(hi) While So long as any of the Securities remain Notes are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, at any time that the Company is not then subject to make availableSection 12 or 15(d) of the Exchange Act, the Company will provide at its expense to each holder of the Notes and to each prospective purchaser (as designated by such holder) of the Notes, upon request, to any seller the request of such Securities the holder or prospective purchaser any information specified in required to be provided by Rule 144A(d)(4) under the Securities Act, unless . (This covenant is intended to be for the Trust is then subject to Section 13 or 15(d) benefit of the Exchange Actholders, and the prospective purchasers designated by such holders from time to time, of the Notes.)
(ij) If requested by you, to The Company will use their commercially reasonable its best efforts to permit cause the Securities Notes to be designated PORTAL Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") market securities in accordance with the rules and regulations adopted by the National Association of Securities Notes Dealers, Inc. relating to trading in the PORTAL Marketand to be eligible for clearance and settlement through DTC.
(jk) None The Company will apply the net proceeds from the sale of the TrustNotes as set forth under "Use of Proceeds" in the Final Memorandum.
(l) Until completion of the distribution, neither the Company nor any of its Affiliates will take, directly or indirectly, any action designed to cause or result in, or which has constituted or which could reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
(m) For so long as any Notes are outstanding, each of the Company, the Guarantors and their subsidiaries will conduct its operations in a manner that will not subject the Company, the Guarantors or any such subsidiary to registration as an investment company under the Investment Company Act.
(n) Neither the Company nor any of its Affiliates, nor any person acting on its or their behalf (other than the Initial PurchasersPurchaser or its agents, as to which the Company makes no covenant) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the SecuritiesNotes, and the Trust, its Affiliates and each person acting on its or their behalf (other than the Initial Purchasers) of them will comply with the offering restrictions requirement of Regulation S. Terms used in this paragraph have the meanings given them by Regulation S.
(ko) During The Company shall cause each of its direct or indirect subsidiaries listed in Schedule 4, which the period Company and the Guarantors represent to be all of two years after the Closing DateCompany's direct and indirect domestic subsidiaries existing as of the date of this Agreement that were reported as discontinued operations in the Company's audited financial statements for the year ended and as of December 31, 2002, to become Subsidiary Guarantors (as defined in the Indenture) by execution and delivery to the Trustee of a supplemental indenture pursuant to which such subsidiary shall assume all obligations of the Subsidiary Guarantors under the Indenture, the Trust will notNotes and the Registration Rights Agreement, such supplemental indenture to be executed and will delivered by the Company and the Subsidiary Guarantors no later than September 30, 2003 (as to each such subsidiary, to the extent such subsidiary has not permit any of its Affiliates been sold by the Company prior to resell any of the Securities which constitute "restricted securities" under Rule 144 that have been reacquired by any of themsuch date).
(lp) Not The Company shall cause Xxxxxxx Acquisition Corp, a Delaware corporation and Evi-Paq Acquisition Corp, a Delaware corporation to take any action prohibited become as Subsidiary Guarantors (as defined in the Indenture) by Regulation M execution and delivery to the Trustee of a supplemental indenture pursuant to which such subsidiary shall assume all obligations of the Subsidiary Guarantors under the Exchange Act in connection with Indenture, the distribution Notes and the Registration Rights Agreement, such supplemental indenture to be executed and delivered by the Company and the Subsidiary Guarantors within 30 days of the Securities contemplated herebydate of this Agreement (except to the extent such subsidiary is dissolved prior to the expiration of such 30-day period).
(q) Each Note will bear a legend substantially to the following effect until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, THE SECURITIES ACT, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS CONTAINED IN THE INDENTURE UNDER WHICH THIS NOTE WAS ISSUED.
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