Covenants of the Company and the Trust. Each of the Company and the Trust jointly and severally covenant with the several Underwriters and the Selling Securityholder as follows: (a) Before amending or supplementing the Registration Statement or the Final Prospectus, to furnish to the Representatives and the Selling Securityholder a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives or the Selling Securityholder reasonably object (other than any Exchange Act filings or any prospectus or prospectus supplement relating to the offering of Shelf Securities other than the Series 2 Trust Preferred Securities). To furnish to the Representatives and the Selling Securityholder 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 the Representative reasonably objects. Not to take any action that would result in the Underwriters, the Selling Securityholder 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 Underwriters or the Selling Securityholder that the Underwriters or the Selling Securityholder otherwise would not have been required to file thereunder. (b) To prepare and file a final term sheet, containing solely a description of the final terms of the Series 2 Trust Preferred Securities and the offering thereof, in a form acceptable to the Representatives and the Selling Securityholder (the “Final Term Sheet”) and to file the Final Term Sheet and any other Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and to provide copies of the Final Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by the Representatives or the Selling Securityholder and, at any Representative’s request, to also furnish copies of the Final Prospectus to the New York Stock Exchange, as may be required by the rules or regulation of such exchange. (c) Prior to the termination of the offering of the Series 2 Trust Preferred Securities, to promptly advise the Representatives and the Selling Securityholder (i) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Series 2 Trust Preferred Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable. (d) If, at any time prior to the filing of the Final Prospectus with respect to the General Disclosure Package, or at any time when a prospectus relating to the Series 2 Trust Preferred Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) with respect to the Final Prospectus, any event occurs as a result of which the Final Prospectus or the General Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Selling Securityholder and the Representatives so that any use of the Final Prospectus or the General Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Final Prospectus or the General Disclosure Package, subject to Section 5(a) above, to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format. (e) To arrange, if necessary, for the qualification of the Series 2 Trust Preferred Securities for sale under the laws of such jurisdictions within the United States as the Representatives reasonably may designate, will maintain such qualifications in effect so long as required for the distribution of the Series 2 Trust Preferred Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), if any, in connection with its review of the offering; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where they would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject. (f) As soon as practicable, to make generally available to its security holders and to the Representatives a consolidated earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158. (g) 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 in connection with the registration of the Series 2 Trust Preferred Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Final Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Series 2 Trust Preferred 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 Representatives and the Selling Securityholder, in the quantities hereinabove specified, (ii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Series 2 Trust Preferred Securities under state securities laws and all expenses in connection with the qualification of the Series 2 Trust Preferred Securities for offer and sale under state securities laws as provided in Section 5(e) above, including filing fees in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum,
Appears in 2 contracts
Samples: Underwriting Agreement, Underwriting Agreement
Covenants of the Company and the Trust. Each of the Company and the Trust jointly and severally covenant with the several Underwriters and the Selling Securityholder as follows:
(a) Before amending or supplementing the Registration Statement or the Final Prospectus, to furnish to the Representatives and the Selling Securityholder a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives or the Selling Securityholder reasonably object (other than any Exchange Act filings or any prospectus or prospectus supplement relating to the offering of Shelf Securities other than the Series 2 Trust Preferred Securities). To furnish to the Representatives and the Selling Securityholder 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 the Representative reasonably objects. Not to take any action that would result in the Underwriters, the Selling Securityholder 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 Underwriters or the Selling Securityholder that the Underwriters or the Selling Securityholder otherwise would not have been required to file thereunder.
(b) To prepare and file a final term sheet, containing solely a description of the final terms of the Series 2 Trust Preferred Securities and the offering thereof, in a form acceptable to the Representatives and the Selling Securityholder (the “Final Term Sheet”) and to file the Final Term Sheet and any other Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and to provide copies of the Final Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by the Representatives or the Selling Securityholder and, at any Representative’s request, to also furnish copies of the Final Prospectus to the New York Stock Exchange, as may be required by the rules or regulation of such exchange.
(c) Prior to the termination of the offering of the Series 2 Trust Preferred Securities, to promptly advise the Representatives and the Selling Securityholder (i) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Series 2 Trust Preferred Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(d) If, at any time prior to the filing of the Final Prospectus with respect to the General Disclosure Package, or at any time when a prospectus relating to the Series 2 Trust Preferred Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) with respect to the Final Prospectus, any event occurs as a result of which the Final Prospectus or the General Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Selling Securityholder and the Representatives so that any use of the Final Prospectus or the General Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Final Prospectus or the General Disclosure Package, subject to Section 5(a) above, to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format.
(e) To arrange, if necessary, for the qualification of the Series 2 Trust Preferred Securities for sale under the laws of such jurisdictions within the United States as the Representatives reasonably may designate, will maintain such qualifications in effect so long as required for the distribution of the Series 2 Trust Preferred Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), if any, in connection with its review of the offering; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where they would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject.
(f) As soon as practicable, to make generally available to its security holders and to the Representatives a consolidated earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158.
(g) 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 in connection with the registration of the Series 2 Trust Preferred Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Final Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Series 2 Trust Preferred 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 Representatives and the Selling Securityholder, in the quantities hereinabove specified, (ii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Series 2 Trust Preferred Securities under state securities laws and all expenses in connection with the qualification of the Series 2 Trust Preferred Securities for offer and sale under state securities laws as provided in Section 5(e) above, including filing fees in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum,, (iii) all filing fees in connection with the offering contemplated by this Agreement, including, without limitation, FINRA filing fees, if any, (iv) all advertising charges incurred with the prior consent of the Company, (v) all fees and expenses of the GMAC Capital Trustees and Guarantee Trustee and the Indenture Trustee, including the fees and disbursements of counsel for such trustees in connection with the transaction contemplated by this Agreement, (vi) any fees and expenses in connection with the rating of the Series 2 Trust Preferred Securities with the rating agencies, (vii) the costs and charges of any transfer agent, registrar or depositary and (viii) all other costs and expenses incident to the performance of the obligations of the Company under this Agreement for which provision is not otherwise made in this Section 5. It is understood, however, that except as provided in this Section 5 and Section 8, the Underwriters will pay all of their costs and expenses, including any advertising expenses connected with any offers the Underwriters may make.
(h) During the period beginning on the date hereof and ending on the Settlement Date, not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of or agree to dispose of, directly or indirectly, or permit the registration under the Securities Act of, any securities of the Company that are substantially similar to the Series 2 Trust Preferred Securities, except for the registration of the Series 2 Trust Preferred Securities and the sales through or to the Underwriters pursuant to this Agreement or with the consent of the Representatives.
(i) Not to take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company or the Trust to facilitate the sale or resale of the Series 2 Trust Preferred Securities, except that no agreement is made as to the activities of any Underwriter.
(j) Not to make any offer relating to the Series 2 Trust Preferred Securities that would constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or that would otherwise constitute a free writing prospectus required to be filed by the Company and the Trust with the Commission or retained by the Company and the Trust under Rule 433 of the Securities Act, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto, to which the Representatives reasonably objected to after being furnished such issuer free writing prospectus or free writing prospectus for review; provided the Representatives shall be deemed not to have objected to any Permitted Free Writing Prospectus. In connection with this Section 5(j), each Underwriter, severally and not jointly, covenants and agrees with the Company and the Trust, not to make any offer relating to the Series 2 Trust Preferred Securities that would constitute an issuer free writing prospectus or that would otherwise constitute a free writing prospectus required to be filed by the Company and the Trust with the Commission or retained by the Company and the Trust under Rule 433 of the Securities Act, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto and other related customary Bloomberg communications, without the consent of the Company and the Trust, which consent shall not be unreasonably withheld; provided the Company and the Trust shall be deemed to have consented to any Permitted Free Writing Prospectus and the electronic road show listed on Schedule II hereto. The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an issuer free writing prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
Appears in 1 contract
Covenants of the Company and the Trust. Each The Offerors, jointly and severally, covenant and agree with each of the Company and the Trust jointly and severally covenant with the several Underwriters and the Selling Securityholder as follows:
(a) Before amending The Offerors will use their respective best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, to become effective as promptly as practicable thereafter. If required, the Offerors will file the Prospectus and any amendments or supplementing supplements thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act. During any time when a prospectus relating to the Preferred Securities is required to be delivered under the Securities Act, each of the Offerors will comply in all material respects with all requirements imposed by the Securities Act and the Securities Act Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Preferred Securities in accordance with the provisions hereof and as contemplated by the Registration Statement or the Final Prospectus, to furnish to the Representatives and the Selling Securityholder Prospectus. With respect to any registration statement, prospectus, amendment (including any post-effective amendment), or supplement to be filed with the Commission in connection with the Preferred Securities, the Offerors will provide a copy of each such document to the Representatives a reasonable time prior to the date such document is proposed amendment or supplement to be filed with the Commission and will not to file any such proposed document without the consent of the Representatives. Any such registration statement, prospectus, amendment or supplement to which supplement, when filed, will comply in all material respects with the Representatives or the Selling Securityholder reasonably object (other than any Exchange Securities Act filings or any prospectus or prospectus supplement relating to the offering of Shelf Securities other than the Series 2 Trust Preferred Securities). To furnish to the Representatives and the Selling Securityholder a copy Securities Act Rules and Regulations. In the event that the Registration Statement is effective at the time of each proposed free writing prospectus execution of this Agreement, but the total number of Preferred Securities subject to be prepared by or on behalf of, used by, or referred to this Agreement exceeds the number of Preferred Securities covered by the Company and not to use or refer to any proposed free writing prospectus to which the Representative reasonably objects. Not to take any action that would result in the UnderwritersRegistration Statement, the Selling Securityholder or the Company being required to Offerors promptly will file with the Commission the date hereof a registration statement pursuant to Rule 433(d462(b) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriters or Rules and Regulations in accordance with the Selling Securityholder that requirements of such Rule and will make payment of the Underwriters or filing fee therefor in accordance with the Selling Securityholder otherwise would not have been required to file thereunderrequirements of Rule 111(b) of the Rules and Regulations.
(b) To prepare and file a final term sheet, containing solely a description of the final terms of the Series 2 Trust Preferred Securities and the offering thereof, in a form acceptable to the Representatives and the Selling Securityholder (the “Final Term Sheet”) and to file the Final Term Sheet and any other Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and to provide copies of the Final Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by the Representatives or the Selling Securityholder and, at any Representative’s request, to also furnish copies of the Final Prospectus to the New York Stock Exchange, as may be required by the rules or regulation of such exchange.
(c) Prior to the termination of the offering of the Series 2 Trust Preferred Securities, to promptly The Offerors will advise the Representatives and promptly and, if requested by the Selling Securityholder Representatives, will confirm such advice in writing (i) when the Registration Statement, as amended, has become effective; (ii) if the provisions of Rule 430A of the Securities Act Rules and Regulations will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A; (iii) when any post-effective amendment to the Registration Statement becomes effective; (iv) of any request made by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or Prospectus or for additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any notice objecting to its use Preliminary Prospectus or Prospectus or any amendment or supplement thereto or the qualification of the securities for offering or sale in any jurisdiction, or the institution or threatening threat of any proceeding investigation or proceedings for that any such purpose by the Commission, any state securities commission or any other regulatory authority; and (iivi) of the receipt by the Company of any notification with respect to comments from the suspension of Commission regarding the qualification of Registration Statement, any post-effective amendment thereto, the Series 2 Trust Preferred Securities for sale in Preliminary Prospectus, the Prospectus, or any jurisdiction amendment or the institution or threatening of any proceeding for such purposesupplement thereto. The Company Offerors will use its their best efforts to prevent the issuance of any such stop order or by the occurrence of Commission, and if at any such suspension or objection to time the Commission shall issue any stop order, the Offerors will use of the Registration Statement and, upon such issuance, occurrence or notice of objection, their best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objectionat the earliest possible moment.
(c) The Offerors will cooperate with the Representatives, including, if necessary, by filing an amendment the Underwriters and counsel to the Registration Statement Underwriters in qualifying or registering the Preferred Securities for sale, or obtaining an exemption therefrom, under the securities or Blue Sky laws of such jurisdictions as the Representatives shall designate, and will continue such qualifications or registrations or exemptions in effect so long as requested by the Representatives to complete the distribution of the Preferred Securities. Notwithstanding the foregoing, neither of the Offerors shall be required to qualify as a new registration statement and using its best efforts foreign corporation or to have file a general consent to service of process in any such amendment or new registration statement declared effective as soon as practicablejurisdiction where it is not presently qualified.
(d) The Offerors' consent to the use of the Prospectus (and any amendment or supplement thereto) by the Underwriters and all dealers to whom the Preferred Securities may be sold, in connection with the offering or sale of the Preferred Securities and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time prior to the filing of the Final Prospectus with respect to the General Disclosure Package, or at any time when a prospectus relating to the Series 2 Trust Preferred Securities is required under the Securities Act to be delivered under in connection with sales of the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) with respect to the Final Prospectussecurities by an underwriter or dealer, any event occurs as a result of which the Final Prospectus Prospectus, as then amended or the General Disclosure Package supplemented, would include any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Selling Securityholder and the Representatives so that or if it becomes necessary at any use of the Final Prospectus or the General Disclosure Package may cease until it is amended or supplemented; (ii) time to amend or supplement the Final Prospectus to comply with the Securities Act or the General Disclosure PackageSecurities Act Rules and Regulations, subject the Offerors promptly will so notify the Representatives and will prepare and file with the Commission an amendment to Section 5(a) above, the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission; and (iii) supply any omission or effect such compliance. The Offerors will provide a copy of each such amendment or supplement to the Representatives a reasonable time prior to the date on which it is proposed to be filed with the Commission and will not file any such amendment or supplement without the Selling Securityholder via electronic mail in “.pdf” formatconsent of the Representatives.
(e) To arrange, if necessary, for the qualification of the Series 2 Trust Preferred Securities for sale under the laws of such jurisdictions within the United States as the Representatives reasonably may designate, will maintain such qualifications in effect so long as required for the distribution of the Series 2 Trust Preferred Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), if any, in connection with its review of the offering; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where they would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject.
(f) As soon as practicable, but in any event not later than forty-five (45) calendar days after the end of the twelve (12) month period beginning on the day after the end of the fiscal quarter of the Offerors during which the effective date of the Registration Statement occurs (ninety (90) calendar days in the event that such quarter is the last fiscal quarter), the Offerors, to the extent not exempt pursuant to the Securities Act, the Securities Act Rules and Regulations or the exemptive authority of the Commission, will make generally available to its their security holders holders, in the manner specified in Rule 158(b) of the Securities Act Rules and Regulations, and will deliver to the Representatives a consolidated Representatives, an earnings statement or statements of the Company and its subsidiaries (which need not be audited) which will satisfy be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Securities Act and Rule 158158(a) of the Securities Act Rules and Regulations, which statement need not be audited unless required by the Securities Act or the Securities Act Rules and Regulations, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(f) For a period of three (3) years commencing with the date hereof, as promptly as practical after filing or release, as the case may be, each of the Offerors will furnish to the Representatives copies of (i) all annual reports, quarterly reports and current reports filed thereby with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission; (ii) such other documents, proxy statements, reports and information as are furnished thereby to its security holders generally; (iii) each report filed thereby with the NNM; (iv) each press release in respect thereof; (v) and such other public information relating to the Offerors as the Representatives may reasonably request.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminatedThe Offerors will furnish, without charge, to pay the Representatives or on the Representative's request, at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any amendments thereto, any registration statement filed pursuant to Rule 462(b) (of which copies two (2) will be signed and will include all financial statements and exhibits) and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Representatives may reasonably request.
(h) Each of the Offerors will use its best efforts to cause the Preferred Securities to be duly approved for listing on the NNM, subject to notice of issuance, prior to the Closing Date and to cause the Preferred Securities to remain listed for at least thirty-six (36) months thereafter.
(i) None of the Offerors, the Subsidiaries or any of their officers or directors, trustees or affiliates, (within the meaning of the Securities Act Rules and Regulations) will take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any securities of the Offerors.
(j) The Offerors will apply the net proceeds from the sale of the Preferred Securities and the Subordinated Debentures in the manner and for the purposes set forth in the Prospectus and will make such disclosures of the application of such proceeds as may be required by Rule 463 of the Securities Act Rules and Regulations. Pending application of the net proceeds of the sale of the Common Securities, the Preferred Securities and the Subordinated Debentures in such manner, the Offerors and each of the Subsidiaries will operate their businesses in such manner and for such purposes and each will invest such net proceeds in such securities, so as not to become an "investment company" as such term is defined under the Investment Company Act.
(k) To the extent not exempt pursuant to the Securities Act, the Securities Act Rules and Regulations or the exemptive authority of the Commission, each of the Offerors will timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the rules and regulations thereunder, and all such reports, forms and documents so filed will materially comply as to form and substance with the applicable requirements under the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the rules and regulations thereunder which may from time to time be applicable thereto. Each of the Offerors shall comply with the provisions of all undertakings contained in the Registration Statement.
(l) Neither of the Offerors shall, prior to the exercise in full or expiration of the Underwriters' option to purchase Additional Securities, offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that, in the reasonable judgment of the Representatives are substantially similar to the Preferred Securities, without the prior written consent of the Representatives.
(m) The Offerors will not, without the prior written consent of the Representatives, which shall not be unreasonably withheld, prior to the exercise in full or termination or expiration of the Underwriters' option to purchase the Additional Securities, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as described in or contemplated by the Registration Statement and the Prospectus.
(n) Neither of the Offerors shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriters pursuant hereto.
(o) Each of the Offerors will use its best efforts to comply or cause to be paid all expenses incident complied with the conditions to the performance of its Underwriters' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Series 2 Trust Preferred Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Final Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Series 2 Trust Preferred 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 Representatives and the Selling Securityholder, in the quantities hereinabove specified, (ii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Series 2 Trust Preferred Securities under state securities laws and all expenses in connection with the qualification of the Series 2 Trust Preferred Securities for offer and sale under state securities laws as provided set forth in Section 5(e) above, including filing fees in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum,8 hereof.
Appears in 1 contract
Covenants of the Company and the Trust. Each of the The Company and the Trust jointly and severally covenant covenants with the several Underwriters and the Selling Securityholder as follows:
(a) Before amending or supplementing the Registration Statement or the Final Prospectus, to furnish to the Representatives and the Selling Securityholder a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives or the Selling Securityholder reasonably object (other than any Exchange Act filings or any prospectus or prospectus supplement relating to the offering of Shelf Securities other than the Series 2 Trust Preferred Capital Securities). To furnish to the Representatives and the Selling Securityholder 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 the Representative reasonably objects. Not to take any action that would result in the Underwriters, the Selling Securityholder 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 Underwriters or the Selling Securityholder that the Underwriters or the Selling Securityholder otherwise would not have been required to file thereunder.
(b) To prepare and file a final term sheet, containing solely a description of the final terms of the Series 2 Trust Preferred Capital Securities and the offering thereof, in a form acceptable to the Representatives and the Selling Securityholder (the “Final Term Sheet”) and to file the Final Term Sheet and any other Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and to provide copies of the Final Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by the Representatives or the Selling Securityholder and, at any Representative’s request, to also furnish copies of the Final Prospectus to the New York Stock Exchange, as may be required by the rules or regulation regulations of such exchange.
(c) Prior to the termination of the offering of the Series 2 Trust Preferred Capital Securities, to promptly advise the Representatives and the Selling Securityholder (i) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (ii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Series 2 Trust Preferred Capital Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(d) If, at any time prior to the filing of the Final Prospectus with respect to the General Disclosure Package, or at any time when a prospectus relating to the Series 2 Trust Preferred Capital Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) with respect to the Final Prospectus, any event occurs as a result of which the Final Prospectus or the General Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Selling Securityholder and the Representatives so that any use of the Final Prospectus or the General Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Final Prospectus or the General Disclosure Package, subject to Section 5(a) above, to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives and the Selling Securityholder via electronic mail in “.pdf” formatsuch quantities as the Representatives or the Selling Securityholder may reasonably request.
(e) To arrange, if necessary, for the qualification of the Series 2 Trust Preferred Capital Securities for sale under the laws of such jurisdictions within the United States as the Representatives reasonably may designate, will maintain such qualifications in effect so long as required for the distribution of the Series 2 Trust Preferred Capital Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), if any, in connection with its review of the offering; provided that in no event shall the Company shall not be required obligated to (i) qualify as a foreign corporation or other entity or as a dealer in securities to do business in any such jurisdiction where they it is not now so qualified or to take any action that would not otherwise be required to so qualify, (ii) file any general consent subject it to service of process in any such jurisdiction suits, other than those arising out of the offering or (iii) subject themselves to taxation sale of the Capital Securities, in any such jurisdiction if they are where it is not otherwise now so subject.
(f) As soon as practicable, to make generally available to its security holders and to the Representatives a consolidated earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158.
(g) 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 in connection with the registration of the Series 2 Trust Preferred Capital Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Final Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Series 2 Trust Preferred Capital 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 Representatives and the Selling Securityholder, in the quantities hereinabove specified, (ii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Series 2 Trust Preferred Capital Securities under state securities laws and all expenses in connection with the qualification of the Series 2 Trust Preferred Capital Securities for offer and sale under state securities laws as provided in Section 5(e) above, including filing fees in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum,, (iii) all filing fees in connection with the offering contemplated by this Agreement, including, without limitation, FINRA filing fees, if any, (iv) all costs and expenses incident to listing the Capital Securities on the New York Stock Exchange, (v) the costs and charges of any transfer agent, registrar or depositary, and (vi) all other costs and expenses incident to the performance of the obligations of the Company under this Agreement for which provision is not otherwise made in this Section 5. It is understood, however, that except as provided in this Section 5 and Section 8, the Underwriters will pay all of their costs and expenses, including any advertising expenses connected with any offers the Underwriters may make.
(h) During the period beginning on the date hereof and ending on the Settlement Date, not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell or otherwise dispose of or agree to dispose of, directly or indirectly, or permit the registration under the Securities Act of, any securities of the Company that are substantially similar to the Capital Securities, except for (i) the registration of the Capital Securities and the sales through or to the Underwriters pursuant to this Agreement or with the consent of the Representatives and (ii) transactions with the FDIC relating to the capital securities of Citigroup Capital XXXIII held by it.
(i) The Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act of 2002, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act of 2002.
(j) Not to take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company or the Trust to facilitate the sale or resale of the Capital Securities, except that no agreement is made as to the activities of any Underwriter.
Appears in 1 contract
Covenants of the Company and the Trust. Each The Offerors, jointly and severally, covenant and agree with each of the Company and the Trust jointly and severally covenant with the several Underwriters and the Selling Securityholder as follows:
(a) Before amending The Offerors will use their respective best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, to become effective as promptly as practicable thereafter. If required, the Offerors will file the Prospectus and any amendments or supplementing supplements thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act. During any time when a prospectus relating to the Preferred Securities is required to be delivered under the Securities Act, each of the Offerors will comply in all material respects with all requirements imposed by the Securities Act and the Securities Act Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Preferred Securities in accordance with the provisions hereof and as contemplated by the Registration Statement or the Final Prospectus, to furnish to the Representatives and the Selling Securityholder Prospectus. With respect to any registration statement, prospectus, amendment (including any post-effective amendment), or supplement to be filed with the Commission in connection with the Preferred Securities, the Offerors will provide a copy of each such document to the Representative a reasonable time prior to the date such document is proposed amendment or supplement to be filed with the Commission and will not to file any such proposed document without the consent of the Representative. Any such registration statement, prospectus, amendment or supplement to which supplement, when filed, will comply in all material respects with the Representatives or the Selling Securityholder reasonably object (other than any Exchange Securities Act filings or any prospectus or prospectus supplement relating to the offering of Shelf Securities other than the Series 2 Trust Preferred Securities). To furnish to the Representatives and the Selling Securityholder a copy Securities Act Rules and Regulations. In the event that the Registration Statement is effective at the time of each proposed free writing prospectus execution of this Agreement, but the total number of Preferred Securities subject to be prepared by or on behalf of, used by, or referred to this Agreement exceeds the number of Preferred Securities covered by the Company and not to use or refer to any proposed free writing prospectus to which the Representative reasonably objects. Not to take any action that would result in the UnderwritersRegistration Statement, the Selling Securityholder or the Company being required to Offerors promptly will file with the Commission on the date hereof a registration statement pursuant to Rule 433(d462(b) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriters or Rules and Regulations in accordance with the Selling Securityholder that requirements of such Rule and will make payment of the Underwriters or filing fee therefor in accordance with the Selling Securityholder otherwise would not have been required to file thereunderrequirements of Rule 111(b) of the Rules and Regulations.
(b) To prepare and file a final term sheetThe Offerors will advise the Representative promptly and, containing solely a description if requested by the Representative, will confirm such advice in writing (i) when the Registration Statement, as amended, has become effective; (ii) if the provisions of Rule 430A of the final terms of Securities Act Rules and Regulations will be relied upon, when the Series 2 Trust Preferred Securities and the offering thereof, Prospectus has been filed in a form acceptable accordance with said Rule 430A; (iii) when any post-effective amendment to the Representatives and Registration Statement becomes effective; (iv) of any request made by the Selling Securityholder (the “Final Term Sheet”) and to file the Final Term Sheet and any other Permitted Free Writing Prospectus Commission for amendments or supplements to the extent required by Rule 433 under the Securities ActRegistration Statement, and to provide copies of the Final any Preliminary Prospectus and each Permitted Free Writing or Prospectus or for additional information; (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by the Representatives or the Selling Securityholder and, at any Representative’s request, to also furnish copies of the Final Prospectus to the New York Stock Exchange, as may be required by the rules or regulation of such exchange.
(c) Prior to the termination of the offering of the Series 2 Trust Preferred Securities, to promptly advise the Representatives and the Selling Securityholder (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any notice objecting to its use Preliminary Prospectus or Prospectus or any amendment or supplement thereto or the qualification of the securities for offering or sale in any jurisdiction, or the institution or threatening threat of any proceeding investigation or proceedings for that any such purpose by the Commission, any state securities commission or any other regulatory authority; and (iivi) of the receipt by the Company of any notification with respect to comments from the suspension of Commission regarding the qualification of Registration Statement, any post-effective amendment thereto, the Series 2 Trust Preferred Securities for sale in Preliminary Prospectus, the Prospectus, or any jurisdiction amendment or the institution or threatening of any proceeding for such purposesupplement thereto. The Company Offerors will use its their best efforts to prevent the issuance of any such stop order or by the occurrence of Commission, and if at any such suspension or objection to time the Commission shall issue any stop order, the Offerors will use of the Registration Statement and, upon such issuance, occurrence or notice of objection, their best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objectionat the earliest possible moment.
(c) The Offerors will cooperate with the Representative, including, if necessary, by filing an amendment the Underwriters and counsel to the Registration Statement Underwriters in qualifying or registering the Preferred Securities for sale, or obtaining an exemption therefrom, under the securities or Blue Sky laws of such jurisdictions as the Representative shall designate, and will continue such qualifications or registrations or exemptions in effect so long as requested by the Representative to complete the distribution of the Preferred Securities. Notwithstanding the foregoing, neither of the Offerors shall be required to qualify as a new registration statement and using its best efforts foreign corporation or to have file a general consent to service of process in any such amendment or new registration statement declared effective as soon as practicablejurisdiction where it is not presently qualified.
(d) The Offerors consent to the use of the Prospectus (and any amendment or supplement thereto) by the Underwriters and all dealers to whom the Preferred Securities may be sold, in connection with the offering or sale of the Preferred Securities and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time prior to the filing of the Final Prospectus with respect to the General Disclosure Package, or at any time when a prospectus relating to the Series 2 Trust Preferred Securities is required under the Securities Act to be delivered under in connection with sales of the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) with respect to the Final Prospectussecurities by an underwriter or dealer, any event occurs as a result of which the Final Prospectus Prospectus, as then amended or the General Disclosure Package supplemented, would include any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Selling Securityholder and the Representatives so that or if it becomes necessary at any use of the Final Prospectus or the General Disclosure Package may cease until it is amended or supplemented; (ii) time to amend or supplement the Final Prospectus to comply with the Securities Act or the General Disclosure PackageSecurities Act Rules and Regulations, subject the Offerors promptly will so notify the Representative and will prepare and file with the Commission an amendment to Section 5(a) above, to correct such statement the Registration Statement or omission; and (iii) supply any an amendment or supplement to the Representatives Prospectus which will correct such statement or omission or effect such compliance. The Offerors will provide a copy of each such amendment or supplement to the Representative a reasonable time prior to the date on which it is proposed to be filed with the Commission and will not file any such amendment or supplement without the Selling Securityholder via electronic mail in “.pdf” formatconsent of the Representative.
(e) To arrange, if necessary, for the qualification of the Series 2 Trust Preferred Securities for sale under the laws of such jurisdictions within the United States as the Representatives reasonably may designate, will maintain such qualifications in effect so long as required for the distribution of the Series 2 Trust Preferred Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), if any, in connection with its review of the offering; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where they would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject.
(f) As soon as practicable, but in any event not later than forty-five (45) calendar days after the end of the twelve (12) month period beginning on the day after the end of the fiscal quarter of the Offerors during which the effective date of the Registration Statement occurs (ninety (90) calendar days in the event that such quarter is the last fiscal quarter), the Offerors, to the extent not exempt pursuant to the Securities Act, the Securities Act Rules and Regulations or the exemptive authority of the Commission, will make generally available to its their security holders holders, in the manner specified in Rule 158(b) of the Securities Act Rules and Regulations, and will deliver to the Representatives a consolidated Representative, an earnings statement or statements of the Company and its subsidiaries which will satisfy be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Securities Act and Rule 158158(a) of the Securities Act Rules and Regulations, which statement need not be audited unless required by the Securities Act or the Securities Act Rules and Regulations, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(f) For a period of five (5) years commencing with the date hereof, as promptly as practical after filing or release, as the case may be, each of the Offerors will furnish to the Representative copies of (i) all annual reports, quarterly reports and current reports filed thereby with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission; (ii) such other documents, proxy statements, reports and information as are furnished thereby to its security holders generally; (iii) each report filed thereby with the NNM; (iv) each press release in respect thereof; (v) and such other public information relating to the Offerors as the Representative may reasonably request.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminatedThe Offerors will furnish, without charge, to pay the Representative or on the Representative's order, at such place as the Representative may designate, copies of each Preliminary Prospectus, the Registration Statement and any amendments thereto, any registration statement filed pursuant to Rule 462(b) (of which copies two (2) will be signed and will include all financial statements and exhibits) and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Representative may reasonably request.
(h) Each of the Offerors will use its best efforts to cause the Preferred Securities to be duly approved for listing on the NNM, subject to notice of issuance, prior to the Closing Date and to cause the Preferred Securities to remain listed for at least thirty-six (36) months thereafter.
(i) None of the Offerors, either of the Subsidiaries or any of their officers or directors, trustees or affiliates, (within the meaning of the Securities Act Rules and Regulations) will take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any securities of the Offerors.
(j) The Offerors will apply the net proceeds from the sale of the Common Securities, the Preferred Securities and the Subordinated Debentures in the manner and for the purposes set forth in the Prospectus and will make such disclosures of the application of such proceeds as may be required by Rule 463 of the Securities Act Rules and Regulations. Pending application of the net proceeds of the sale of the Common Securities, the Preferred Securities and the Subordinated Debentures in such manner, the Offerors and each of the Subsidiaries will operate their businesses in such manner and for such purposes and each will invest such net proceeds in such securities, so as not to become an "investment company" as such term is defined under the Investment Company Act.
(k) To the extent not exempt pursuant to the Securities Act, the Securities Act Rules and Regulations or the exemptive authority of the Commission, each of the Offerors will timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the rules and regulations thereunder, and all such reports, forms and documents so filed will comply as to form and substance with the applicable requirements under the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the rules and regulations thereunder which may from time to time be applicable thereto. Each of the Offerors shall comply with the provisions of all undertakings contained in the Registration Statement.
(l) Neither of the Offerors shall, prior to the exercise in full or expiration of the Underwriters' option to purchase Additional Securities, offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that, in the reasonable judgment of the Representative are substantially similar to the Preferred Securities, without the prior written consent of the Representative.
(m) The Offerors will not, prior to the exercise in full or termination or expiration of the Underwriters' option to purchase the Additional Securities, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as described in or contemplated by the Registration Statement and the Prospectus.
(n) Neither of the Offerors shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriters pursuant hereto.
(o) Each of the Offerors will use its best efforts to comply or cause to be paid all expenses incident complied with the conditions to the performance of its Underwriters' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Series 2 Trust Preferred Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Final Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Series 2 Trust Preferred 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 Representatives and the Selling Securityholder, in the quantities hereinabove specified, (ii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Series 2 Trust Preferred Securities under state securities laws and all expenses in connection with the qualification of the Series 2 Trust Preferred Securities for offer and sale under state securities laws as provided set forth in Section 5(e) above, including filing fees in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum,8 hereof.
Appears in 1 contract
Covenants of the Company and the Trust. Each The Offerors, jointly and severally, covenant and agree with each of the Company and the Trust jointly and severally covenant with the several Underwriters and the Selling Securityholder as follows:
(a) Before amending The Offerors will use their respective best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, to become effective as promptly as practicable thereafter. If required, the Offerors will file the Prospectus, and any amendments or supplementing supplements thereto, with the Commission in the manner, and within the time period, required by Rule 424(b) under the Securities Act. During any time when a prospectus relating to the Preferred Securities is required to be delivered under the Securities Act, each of the Offerors will comply in all material respects with all requirements imposed by the Securities Act and the Securities Act Rules and Regulations to the extent necessary to permit the continuance of sales of, or dealings in, the Preferred Securities in accordance with the provisions hereof and as contemplated by the Registration Statement or the Final Prospectus, to furnish to the Representatives and the Selling Securityholder Prospectus. With respect to any registration statement, prospectus, amendment (including any post-effective amendment), or supplement to be filed with the Commission in connection with the Preferred Securities, the Offerors will provide a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives or the Selling Securityholder reasonably object (other than any Exchange Act filings or any prospectus or prospectus supplement relating to the offering of Shelf Securities other than the Series 2 Trust Preferred Securities). To furnish document to the Representatives a reasonable time prior to the date such document is proposed to be filed with the Commission. Any such registration statement, prospectus, amendment or supplement, when filed, will comply in all material respects with the Securities Act and the Selling Securityholder a copy Securities Act Rules and Regulations. In the event that the Registration Statement is effective at the time of each proposed free writing prospectus execution of this Agreement, but the total number of Preferred Securities subject to be prepared by or on behalf of, used by, or referred to this Agreement exceeds the number of Preferred Securities covered by the Company and not to use or refer to any proposed free writing prospectus to which the Representative reasonably objects. Not to take any action that would result in the UnderwritersRegistration Statement, the Selling Securityholder or the Company being required to Offerors promptly will file with the Commission on the date hereof a registration statement pursuant to Rule 433(d462(b) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriters or Rules and Regulations in accordance with the Selling Securityholder that requirements of such Rule and will make payment of the Underwriters or filing fee therefor in accordance with the Selling Securityholder otherwise would not have been required to file thereunderrequirements of Rule 111(b) of the Rules and Regulations.
(b) To prepare and file a final term sheet, containing solely a description of the final terms of the Series 2 Trust Preferred Securities and the offering thereof, in a form acceptable to the Representatives and the Selling Securityholder (the “Final Term Sheet”) and to file the Final Term Sheet and any other Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and to provide copies of the Final Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by the Representatives or the Selling Securityholder and, at any Representative’s request, to also furnish copies of the Final Prospectus to the New York Stock Exchange, as may be required by the rules or regulation of such exchange.
(c) Prior to the termination of the offering of the Series 2 Trust Preferred Securities, to promptly The Offerors will advise the Representatives and promptly and, if requested by the Selling Securityholder Representatives, will confirm such advice in writing (i) when the Registration Statement, as amended, has become effective; (ii) if the provisions of Rule 430A of the Securities Act Rules and Regulations will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A; (iii) when any post-effective amendment to the Registration Statement becomes effective; (iv) of any request made by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or Prospectus or additional information; (v) of the issuance by the Commission Commission, any state securities commission or any other regulatory authority of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, preventing or suspending the use of any notice objecting to its use Preliminary Prospectus or Prospectus, any amendment or supplement thereto, or preventing or suspending the qualification of the securities for offering or sale in any jurisdiction, or the institution or threatening threat of any proceeding investigation or proceedings for that purpose any such purposes by the Commission, any state securities commission or any other regulatory authority; and (iivi) of the receipt by the Company of any notification with respect to comments from the suspension of Commission regarding the qualification of Registration Statement, any post-effective amendment thereto, the Series 2 Trust Preferred Securities for sale in Preliminary Prospectus, the Prospectus, or any jurisdiction amendment or the institution or threatening of any proceeding for such purposesupplement thereto. The Company Offerors will use its their best efforts to prevent the issuance of any such stop order or by the occurrence of Commission, and if at any such suspension or objection to time the Commission shall issue any stop order, the Offerors will use of the Registration Statement and, upon such issuance, occurrence or notice of objection, their best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objectionat the earliest possible moment.
(c) The Offerors will cooperate with the Representatives, including, if necessary, by filing an amendment the Underwriters and counsel to the Registration Statement Underwriters in qualifying or registering the Preferred Securities for sale, or obtaining an exemption therefrom, under the securities or Blue Sky laws of such jurisdictions as the Representatives shall designate, and will continue such qualifications or registrations or exemptions in effect so long as requested by the Representatives to complete the distribution of the Preferred Securities. Notwithstanding the foregoing, neither of the Offerors shall be required to qualify as a new registration statement and using its best efforts foreign corporation or to have file a general consent to service of process in any such amendment or new registration statement declared effective as soon as practicablejurisdiction where it is not presently qualified.
(d) The Offerors consent to the use of the Prospectus (and any amendment or supplement thereto) by the Underwriters and all dealers to whom the Preferred Securities may be sold, in connection with the offering or sale of the Preferred Securities, and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time prior to the filing of the Final Prospectus with respect to the General Disclosure Package, or at any time when a prospectus relating to the Series 2 Trust Preferred Securities is required under the Securities Act to be delivered under in connection with sales of the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) with respect to the Final Prospectussecurities by an underwriter or dealer, any event occurs as a result of which the Final Prospectus Prospectus, as then amended or the General Disclosure Package supplemented, would include any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Selling Securityholder and the Representatives so that or if it becomes necessary at any use of the Final Prospectus or the General Disclosure Package may cease until it is amended or supplemented; (ii) time to amend or supplement the Final Prospectus to comply with the Securities Act or the General Disclosure PackageSecurities Act Rules and Regulations, subject the Offerors promptly will so notify the Representatives and will prepare and file with the Commission an amendment to Section 5(a) above, the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission; and (iii) supply any omission or effect such compliance. The Offerors will provide a copy of each such amendment or supplement to the Representatives and a reasonable time prior to the Selling Securityholder via electronic mail in “.pdf” formatdate on which it is proposed to be filed with the Commission.
(e) To arrange, if necessary, for the qualification of the Series 2 Trust Preferred Securities for sale under the laws of such jurisdictions within the United States as the Representatives reasonably may designate, will maintain such qualifications in effect so long as required for the distribution of the Series 2 Trust Preferred Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), if any, in connection with its review of the offering; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where they would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject.
(f) As soon as practicable, but in any event not later than forty-five (45) calendar days after the end of the twelve (12) month period beginning on the day after the end of the fiscal quarter of the Offerors during which the effective date of the Registration Statement occurs (ninety (90) calendar days in the event that such quarter is the last fiscal quarter), the Offerors, to the extent not exempt pursuant to the Securities Act, the Securities Act Rules and Regulations or the exemptive authority of the Commission, will make generally available to its their security holders holders, in the manner specified in Rule 158(b) of the Securities Act Rules and Regulations, and will deliver to the Representatives a consolidated Representatives, an earnings statement or statements of the Company and its subsidiaries which will satisfy be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Securities Act and Rule 158158(a) of the Securities Act Rules and Regulations, which statement need not be audited unless required by the Securities Act or the Securities Act Rules and Regulations, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminatedThe Offerors will furnish, without charge, to pay the Representatives or cause on the Representatives' order, at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any amendments thereto, any registration statement filed pursuant to be paid Rule 462(b) (of which copies two (2) will include all expenses incident to financial statements and exhibits) and the performance of its obligations under this AgreementProspectus, including: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Series 2 Trust Preferred Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Final Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoingthereto, including the filing fees payable to the Commission relating to the Series 2 Trust Preferred Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, in each case as soon as available and the mailing and delivering of copies thereof to in such quantities as the Representatives and the Selling Securityholder, in the quantities hereinabove specified, (ii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Series 2 Trust Preferred Securities under state securities laws and all expenses in connection with the qualification of the Series 2 Trust Preferred Securities for offer and sale under state securities laws as provided in Section 5(e) above, including filing fees in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum,may reasonably request.
Appears in 1 contract
Covenants of the Company and the Trust. Each The Offerors, -------------------------------------- jointly and severally, covenant and agree with each of the Company and the Trust jointly and severally covenant with the several Underwriters and the Selling Securityholder as follows:
(a) Before amending The Offerors will use their respective best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, to become effective as promptly as practicable thereafter. If required, the Offerors will file the Prospectus and any amendments or supplementing supplements thereto with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act. During any time when a prospectus relating to the Preferred Securities is required to be delivered under the Securities Act, each of the Offerors will comply in all material respects with all requirements imposed by the Securities Act and the Securities Act Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Preferred Securities in accordance with the provisions hereof and as contemplated by the Registration Statement or the Final Prospectus, to furnish to the Representatives and the Selling Securityholder Prospectus. With respect to any registration statement, prospectus, amendment (including any post-effective amendment), or supplement to be filed with the Commission in connection with the Preferred Securities, the Offerors will provide a copy of each such document to the Representatives a reasonable time prior to the date such document is proposed amendment or supplement to be filed with the Commission and will not to file any such proposed document without the consent of the Representatives. Any such registration statement, prospectus, amendment or supplement to which supplement, when filed, will comply in all material respects with the Representatives or the Selling Securityholder reasonably object (other than any Exchange Securities Act filings or any prospectus or prospectus supplement relating to the offering of Shelf Securities other than the Series 2 Trust Preferred Securities). To furnish to the Representatives and the Selling Securityholder a copy Securities Act Rules and Regulations. In the event that the Registration Statement is effective at the time of each proposed free writing prospectus execution of this Agreement, but the total number of Preferred Securities subject to be prepared by or on behalf of, used by, or referred to this Agreement exceeds the number of Preferred Securities covered by the Company and not to use or refer to any proposed free writing prospectus to which the Representative reasonably objects. Not to take any action that would result in the UnderwritersRegistration Statement, the Selling Securityholder or the Company being required to Offerors promptly will file with the Commission the date hereof a registration statement pursuant to Rule 433(d462(b) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriters or Rules and Regulations in accordance with the Selling Securityholder that requirements of such Rule and will make payment of the Underwriters or filing fee therefor in accordance with the Selling Securityholder otherwise would not have been required to file thereunderrequirements of Rule 111(b) of the Rules and Regulations.
(b) To prepare and file a final term sheet, containing solely a description of the final terms of the Series 2 Trust Preferred Securities and the offering thereof, in a form acceptable to the Representatives and the Selling Securityholder (the “Final Term Sheet”) and to file the Final Term Sheet and any other Permitted Free Writing Prospectus to the extent required by Rule 433 under the Securities Act, and to provide copies of the Final Prospectus and each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on the Commission’s Electronic Data Gathering, Analysis and Retrieval system or any successor system thereto) to the Representatives and the Selling Securityholder via electronic mail in “.pdf” format on such filing date to an electronic mail account designated by the Representatives or the Selling Securityholder and, at any Representative’s request, to also furnish copies of the Final Prospectus to the New York Stock Exchange, as may be required by the rules or regulation of such exchange.
(c) Prior to the termination of the offering of the Series 2 Trust Preferred Securities, to promptly The Offerors will advise the Representatives and promptly and, if requested by the Selling Securityholder Representatives, will confirm such advice in writing (i) when the Registration Statement, as amended, has become effective; (ii) if the provisions of Rule 430A of the Securities Act Rules and Regulations will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A; (iii) when any post-effective amendment to the Registration Statement becomes effective; (iv) of any request made by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or Prospectus or for additional information; (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any notice objecting to its use Preliminary Prospectus or Prospectus or any amendment or supplement thereto or the qualification of the securities for offering or sale in any jurisdiction, or the institution or threatening threat of any proceeding investigation or proceedings for that any such purpose by the Commission, any state securities commission or any other regulatory authority; and (iivi) of the receipt by the Company of any notification with respect to comments from the suspension of Commission regarding the qualification of Registration Statement, any post-effective amendment thereto, the Series 2 Trust Preferred Securities for sale in Preliminary Prospectus, the Prospectus, or any jurisdiction amendment or the institution or threatening of any proceeding for such purposesupplement thereto. The Company Offerors will use its their best efforts to prevent the issuance of any such stop order or by the occurrence of Commission, and if at any such suspension or objection to time the Commission shall issue any stop order, the Offerors will use of the Registration Statement and, upon such issuance, occurrence or notice of objection, their best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objectionat the earliest possible moment.
(c) The Offerors will cooperate with the Representatives, including, if necessary, by filing an amendment the Underwriters and counsel to the Registration Statement Underwriters in qualifying or registering the Preferred Securities for sale, or obtaining an exemption therefrom, under the securities or Blue Sky laws of such jurisdictions as the Representatives shall designate, and will continue such qualifications or registrations or exemptions in effect so long as necessary to complete the distribution of the Preferred Securities. Notwithstanding the foregoing, neither of the Offerors shall be required to qualify as a new registration statement and using its best efforts foreign corporation or to have file a general consent to service of process in any such amendment or new registration statement declared effective as soon as practicablejurisdiction where it is not presently qualified.
(d) The Offerors' consent to the use of the Prospectus (and any amendment or supplement thereto) by the Underwriters and all dealers to whom the Preferred Securities may be sold, in connection with the offering or sale of the Preferred Securities and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If, at any time prior to the filing of the Final Prospectus with respect to the General Disclosure Package, or at any time when a prospectus relating to the Series 2 Trust Preferred Securities is required under the Securities Act to be delivered under in connection with sales of the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) with respect to the Final Prospectussecurities by an underwriter or dealer, any event occurs as a result of which the Final Prospectus Prospectus, as then amended or the General Disclosure Package supplemented, would include any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time made, not misleading, the Company will (i) notify promptly the Selling Securityholder and the Representatives so that or if it becomes necessary at any use of the Final Prospectus or the General Disclosure Package may cease until it is amended or supplemented; (ii) time to amend or supplement the Final Prospectus to comply in all material respects with the Securities Act or the General Disclosure PackageSecurities Act Rules and Regulations, subject the Offerors promptly will so notify the Representatives and will prepare and file with the Commission an amendment to Section 5(a) above, the Registration Statement or an amendment or supplement to the Prospectus which will correct such statement or omission; and (iii) supply any omission or effect such compliance. The Offerors will provide a copy of each such amendment or supplement to the Representatives a reasonable time prior to the date on which it is proposed to be filed with the Commission and will not file any such amendment or supplement without the Selling Securityholder via electronic mail in “.pdf” formatconsent of the Representatives, which shall not be unreasonably withheld.
(e) To arrange, if necessary, for the qualification of the Series 2 Trust Preferred Securities for sale under the laws of such jurisdictions within the United States as the Representatives reasonably may designate, will maintain such qualifications in effect so long as required for the distribution of the Series 2 Trust Preferred Securities and will pay any fee of the Financial Industry Regulatory Authority (“FINRA”), if any, in connection with its review of the offering; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where they would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject themselves to taxation in any such jurisdiction if they are not otherwise so subject.
(f) As soon as practicable, but in any event not later than forty- five (45) calendar days after the end of the twelve (12) month period beginning on the day after the end of the fiscal quarter of the Offerors during which the effective date of the Registration Statement occurs (ninety (90) calendar days in the event that such quarter is the last fiscal quarter), the Offerors, to the extent not exempt pursuant to the Securities Act, the Securities Act Rules and Regulations or the exemptive authority of the Commission, will make generally available to its their security holders holders, in the manner specified in Rule 158(b) of the Securities Act Rules and Regulations, and will deliver to the Representatives a consolidated Representatives, an earnings statement or statements of the Company and its subsidiaries which will satisfy be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Securities Act and Rule 158158(a) of the Securities Act Rules and Regulations, which statement need not be audited unless required by the Securities Act or the Securities Act Rules and Regulations, covering a period of at least twelve (12) consecutive months after the effective date of the Registration Statement.
(f) For a period of three (3) years commencing with the date hereof, as promptly as practical after filing or release, as the case may be, each of the Offerors will furnish to the Representatives copies of (i) all annual reports, quarterly reports and current reports filed thereby with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission; (ii) such other documents, proxy statements, reports and information as are furnished thereby to its security holders generally; (iii) each report filed thereby with the NNM; (iv) each press release in respect thereof; (v) and such other public information relating to the Offerors as the Representatives may reasonably request.
(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminatedThe Offerors will furnish, without charge, to pay the Representatives or on the Representatives' request, at such place as the Representatives may designate, copies of each Preliminary Prospectus, the Registration Statement and any amendments thereto, any registration statement filed pursuant to Rule 462(b) (of which copies two (2) will be signed and will include all financial statements and exhibits) and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Representatives may reasonably request.
(h) Each of the Offerors will use its best efforts to cause the Preferred Securities to be duly approved for listing on the NNM, subject to notice of issuance, prior to the Closing Date and to cause the Preferred Securities to remain listed for at least thirty-six (36) months thereafter.
(i) None of the Offerors, the Subsidiaries or any of their officers or directors, trustees or affiliates, (within the meaning of the Securities Act Rules and Regulations) will take, directly or indirectly, any action designed to, or which might reasonably be expected to, cause or result in stabilization or manipulation of the price of any securities of the Offerors.
(j) The Offerors will apply the net proceeds from the sale of the Preferred Securities and the Subordinated Debentures in the manner and for the purposes set forth in the Prospectus and will make such disclosures of the application of such proceeds as may be required by Rule 463 of the Securities Act Rules and Regulations. Pending application of the net proceeds of the sale of the Common Securities, the Preferred Securities and the Subordinated Debentures in such manner, the Offerors and each of the Subsidiaries will operate their businesses in such manner and for such purposes and each will invest such net proceeds in such securities, so as not to become an "investment company" as such term is defined under the Investment Company Act.
(k) To the extent not exempt pursuant to the Securities Act, the Securities Act Rules and Regulations or the exemptive authority of the Commission, each of the Offerors will timely file all such reports, forms or other documents as may be required from time to time, under the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the rules and regulations thereunder, and all such reports, forms and documents so filed will materially comply as to form and substance with the applicable requirements under the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the rules and regulations thereunder which may from time to time be applicable thereto. Each of the Offerors shall comply with the provisions of all undertakings contained in the Registration Statement.
(l) Neither of the Offerors shall offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that, in the reasonable judgment of the Representatives, is substantially similar to the Preferred Securities, without the prior written consent of the Representatives, which shall not be unreasonably withheld.
(m) The Offerors will not, without the prior written consent of the Representatives, which shall not be unreasonably withheld, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as described in or contemplated by the Registration Statement and the Prospectus.
(n) Neither of the Offerors shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriters pursuant hereto.
(o) Each of the Offerors will use its best efforts to comply or cause to be paid all expenses incident complied with the conditions to the performance of its Underwriters' obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Series 2 Trust Preferred Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Final Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Series 2 Trust Preferred 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 Representatives and the Selling Securityholder, in the quantities hereinabove specified, (ii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Series 2 Trust Preferred Securities under state securities laws and all expenses in connection with the qualification of the Series 2 Trust Preferred Securities for offer and sale under state securities laws as provided set forth in Section 5(e) above, including filing fees in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum,8 hereof.
Appears in 1 contract
