Covenants of the Company and the Underwriters. (a) The Company covenants and agrees with each of the Underwriters and with the Independent Underwriter that: (i) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, any event shall have occurred as a result of which either Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus) or the Prospectus as then amended or supplemented would, in the judgment of the Underwriters and the Independent Underwriter or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus and the Pricing Disclosure Package, in the light of the circumstances existing at the time of delivery of such Pricing Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) to the purchaser, not misleading, or if it shall be necessary at any time to amend or supplement the Pricing Disclosure Package, the Prospectus or either Registration Statement to comply with the Securities Act or the Rules and Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in either Registration Statement, the Pricing Disclosure Package or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify you promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statements declared effective as soon as possible. (ii) The Company will not, without the prior consent of the Representative, (A) make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, except for any Issuer Free Writing Prospectus set forth in Annex IV hereto and any electronic road show previously approved by the Representative, or (B) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect to the Offering or the Notes other than as set forth in Annex IV hereto. If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, conflict with the information in the Registration Statements, the Preliminary Prospectus or the Prospectus as then amended or supplemented or would, in the judgment of the Underwriters or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representative promptly and, if requested by the Representative, prepare and furnish without charge to each Underwriter an appropriate amendment or supplement (in form and substance satisfactory to the Representative) that will correct such statement, omission or conflict or effect such compliance. (iii) The Company has complied and will comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus. (iv) The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statements, all amendments of and supplements to such documents, if any, all documents incorporated by reference in the Registration Statements and Issuer Free Writing Prospectuses, if any, and Prospectus or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 a.m., New York time, or if it is not possible to do so prior to such time, as soon thereafter as practicable, on the business day next succeeding the date of this Agreement and from time to time thereafter the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request. The Company will timely file the Prospectus with the Commission as required by Rule 424(b) of the Rules and Regulations. (v) The Company will endeavor in good faith, in cooperation with you, at or prior to the date of the Prospectus, to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process where it is not already so subject. (vi) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to the Underwriters and the Independent Underwriter as soon as practicable, but in any event not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the date of the Prospectus occurs, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with the provisions of Rule 158 of the Regulation covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statements. (vii) During the period from the date hereof until 45 calendar days after the Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Notes (other than (A) the Notes, (B) the Guarantees and (C) commercial paper issued in the ordinary course of business), without the Representative’s prior written consent. (viii) Whether or not required by the Rules and Regulations, so long as any Notes are outstanding and so long as the Indenture so requires, the Company (A) will furnish to you at your reasonable request copies of all reports or other communications (financial or other) furnished to security holders and (B) will deliver to you (1) as soon as they are available, copies of any and all reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and (2) on or before July 12, 2008, such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission), provided, in the case of each of clauses (A) and (B) above, a copy of such information is not already filed with the Commission pursuant to EXXXX. (ix) The Company will apply the proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package. (x) The Company will use its best efforts to do or perform, or cause to be done or performed, all things required or necessary to be done and performed under this Agreement by the Company and the Guarantors prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Notes. (xi) The Company will use its best efforts in cooperation with the Underwriters to permit the Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company. (xii) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation and Mxxxx’x Investors Service, Inc. to provide their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance of the Notes. (xiii) The Company has not and will not (and has not permitted its affiliates to, and will cause its controlled affiliates not to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes and neither the Company nor any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action prohibited by Regulation M under the Exchange Act. (xiv) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, a stop order suspending the effectiveness of either Registration Statement has been issued or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or a proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the Offering has been initiated or, to the Company’s knowledge, threatened by the Commission, the Company will notify you promptly and use its best efforts to prevent the issuance of any such order suspending the effectiveness of either Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (xv) The Company, during the period when a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder. (b) Each Underwriter, severally and not jointly, covenants and agrees with the Company that such Underwriter will not use or refer to any “free writing prospectus” (as defined in Rule 405 under the Securities Act) without the prior written consent of the Company if such Underwriter’s use of or reference to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (as defined in Rule 433 under the Securities Act); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 4(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from any issuer information with respect to which the Company has given its prior written consent (“Permitted Issuer Information”). Each Underwriter also, severally and not jointly, represents and agrees that such Underwriter has not used or referred to any “free writing prospectus” in connection with the offering of the Notes that includes any information other than Permitted Issuer Information if such “free writing prospectus” conflicts with information contained in (i) the Registration Statements, including the Pricing Disclosure Package and the Prospectus, and not superseded or modified or (ii) any document filed or furnished under the Exchange Act that is incorporated by reference into the Registration Statements and not superseded or modified.

Appears in 1 contract

Samples: Underwriting Agreement (Iron Mountain Inc)

Covenants of the Company and the Underwriters. (a) The Company covenants and agrees with each of the Underwriters and with the Independent Underwriter that: (i) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, any event shall have occurred as a result of which either Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus) or the Prospectus as then amended or supplemented would, in the judgment of the Underwriters and the Independent Underwriter or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus and the Pricing Disclosure Package, in the light of the circumstances existing at the time of delivery of such Pricing Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) to the purchaser, not misleading, or if it shall be necessary at any time to amend or supplement the Pricing Disclosure Package, the Prospectus or either Registration Statement to comply with the Securities Act or the Rules and Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in either Registration Statement, the Pricing Disclosure Package or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify you promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statements declared effective as soon as possible. (ii) The Company will not, without the prior consent of the Representative, (A) make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, except for any Issuer Free Writing Prospectus set forth in Annex IV hereto and any electronic road show previously approved by the Representative, or (B) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect to the Offering or the Notes other than as set forth in Annex IV hereto. If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, conflict with the information in the Registration Statements, the Preliminary Prospectus or the Prospectus as then amended or supplemented or would, in the judgment of the Underwriters or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representative promptly and, if requested by the Representative, prepare and furnish without charge to each Underwriter an appropriate amendment or supplement (in form and substance satisfactory to the Representative) that will correct such statement, omission or conflict or effect such compliance. (iii) The Company has complied and will comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus. (iv) The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statements, all amendments of and supplements to such documents, if any, all documents incorporated by reference in the Registration Statements and Issuer Free Writing Prospectuses, if any, and Prospectus or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 a.m., New York time, or if it is not possible to do so prior to such time, as soon thereafter as practicable, on the business day next succeeding the date of this Agreement and from time to time thereafter the Company will furnish the ~~Underwriters~~ Underwriter with ~~copies~~ an electronic copy of the ~~Prospectus in New York City in such quantities as you may reasonably request~~Prospectus. The Company will timely file the Prospectus with the Commission as required by Rule 424(b) of the Rules and Regulations. (v) The Company will endeavor in good faith, in cooperation with ~~you~~the Underwriters, at or prior to the date of the Prospectus, to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process where it is not already so subject. (vi) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to the Underwriters and the Independent Underwriter as soon as practicable, but in any event not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the date of the Prospectus occurs, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with the provisions of Rule 158 of the Regulation covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statements. (vii) During the period from the date hereof until 45 calendar days after the Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Notes (other than (A) the Notes, (B) the Guarantees and (C) commercial paper issued in the ordinary course of business), without the Representative’s prior written consent. (viii) Whether or not required by the Rules and Regulations, so long as any Notes are outstanding and so long as the Indenture so requires, the Company (A) will furnish to you at your reasonable request copies of all reports or other communications (financial or other) furnished to security holders and (B) will deliver to you (1) as soon as they are available, copies of any and all reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and (2) on or before ~~July 12~~January 11, ~~2008~~2009, such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission), provided, in the case of each of clauses (A) and (B) above, a copy of such information is not already filed with the Commission pursuant to ~~EXXXX~~XXXXX. (ix) The Company will apply the proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package. (x) The Company will use its best efforts to do or perform, or cause to be done or performed, all things required or necessary to be done and performed under this Agreement by the Company and the Guarantors prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Notes. (xi) The Company will use its best efforts in cooperation with the Underwriters to permit the Notes to be eligible for clearance and settlement through the facilities of ~~The Depository Trust Company~~Euroclear and Clearstream. (xii) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation and ~~Mxxxx’x~~ Xxxxx’x Investors Service, Inc. to provide their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance of the Notes. (xiii) The Company has not and will not (and has not permitted its affiliates to, and will cause its controlled affiliates not to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes and neither the Company nor any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action prohibited by Regulation M under the Exchange Act. (xiv) The Company will use commercially reasonable efforts to effect the listing of the Notes on the Official List of the Luxembourg Stock Exchange, and for the Notes to be eligible for trading on the Euro MTF market of that exchange, as promptly as practicable and will use commercially reasonable efforts to maintain such listing for so long as such Notes are outstanding. Without limiting the generality of the foregoing, such efforts shall not include the requirement that the Company or the Guarantors deliver separate financial statements for the Guarantors unless it is required to do so by the Commission. If as a result of the implementation of the proposed directive 2003/0045 (COD) of the European Council on the harmonisation of transparency requirements with regard to information about issuers whose securities are admitted to trading on a regulated market or any other directive or similar rule or regulation, it becomes, in the sole opinion of the Company, unduly onerous or burdensome for the Company to maintain the listing of the Notes, the Company may cancel such listing of the Notes. (xv) The Company will pay any documentary, stamp, issuance, transfer or similar tax or duty, including any interest and penalties, on the creation, issuance, initial sale to the Underwriters hereunder and the initial resale by the Underwriters of the Notes and on the execution and delivery of this Agreement. (xvi) The Company undertakes that it will use commercially reasonable efforts to maintain a paying agent in a European Union Member State that will not be obliged to withhold or deduct tax pursuant to the European Union Directive on the taxation of savings income (Council Directive 2003/48/EC). (xvii) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, a stop order suspending the effectiveness of either Registration Statement has been issued or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or a proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the Offering has been initiated or, to the Company’s knowledge, threatened by the Commission, the Company will notify you promptly and use its best efforts to prevent the issuance of any such order suspending the effectiveness of either Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (xvxviii) The Company, during the period when a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder. (b) Each Underwriter, severally and not jointly, covenants and agrees with the Company that such Underwriter will not use or refer to any “free writing prospectus” (as defined in Rule 405 under the Securities Act) without the prior written consent of the Company if such Underwriter’s use of or reference to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (as defined in Rule 433 under the Securities Act); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 4(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from any issuer information with respect to which the Company has given its prior written consent (“Permitted Issuer Information”). Each Underwriter also, severally and not jointly, represents and agrees that such Underwriter has not used or referred to any “free writing prospectus” in connection with the offering of the Notes that includes any information other than Permitted Issuer Information if such “free writing prospectus” conflicts with information contained in (i) the Registration Statements, including the Pricing Disclosure Package and the Prospectus, and not superseded or modified or (ii) any document filed or furnished under the Exchange Act that is incorporated by reference into the Registration Statements and not superseded or modified.

Appears in 1 contract

Samples: Underwriting Agreement (Iron Mountain Inc)

Covenants of the Company and the Underwriters. (a) The Company covenants and agrees with ~~each of~~ the several Underwriters ~~and with the Independent Underwriter~~ that: (i) IfThe Company will (A) prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Representative and file such Rule 462(b) Registration Statement with the Commission by 10:00 P.M., New York time, on the date hereof, and the Company shall at ~~any~~ the time ~~when a prospectus relating~~ of filing either pay to the ~~Notes (or, in lieu thereof,~~ Commission the ~~notice referred~~ filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to in Rule ~~173(a~~111(b) under the ~~Securities Act~~Rules and Regulations, (B) ~~is required to be delivered~~ prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus in a form approved by the Representative containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rules 430A, 430B or 430C under the Act, (C) not file any amendment to the Registration Statement or distribute an amendment or supplement to the General Disclosure Package or the Prospectus or document incorporated by reference therein of which the Representative shall not previously have been advised and furnished with a copy or to which the Representative shall have reasonably objected in writing or which is not in compliance in all material respects with the Rules and Regulations and (D) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus and prior to the termination of the offering of the Shares pursuant to this Agreement by the Underwriters. (ii) The Company will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act). (iii) During the Prospectus Delivery Period (as defined below), the Company will advise the Representative promptly (A) when any post-effective amendment to the Registration Statement shall have become effective, (B) of receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (C) when any supplement to the Prospectus or any amendment to the Prospectus has been filed, (D) of any request of the Commission for amendment of the Registration Statement or for supplement to the General Disclosure Package or the Prospectus or for any additional information, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the institution of any proceedings for that purpose or pursuant to Section 8A of the Act, (F) of the occurrence of any event ~~shall have occurred~~ within the Prospectus Delivery Period as a result of which ~~either Registration Statement~~the Prospectus, the ~~Pricing~~ General Disclosure Package ~~(prior to the availability of the Prospectus) or the Prospectus~~ as then amended or supplemented ~~would, in the judgment of the Underwriters and the Independent Underwriter or the Company,~~ would include an any untrue statement of a material fact or omit to state ~~any~~ a material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the ~~case of the Prospectus and the Pricing Disclosure Package, in the~~ light of the circumstances existing at when the Prospectus or the General Disclosure Package is delivered to a purchaser, not misleading, and (G) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any order referred to in clause (E) or (G) of this paragraph and to obtain as soon as possible the lifting thereof, if issued. (iv) The Company will cooperate with the Representative in endeavoring to qualify the Shares for sale under the securities laws of such jurisdictions as the Representative may reasonably have designated in writing and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to (A) qualify as a foreign corporation, (B) file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent, or (C) subject itself to taxation in any such jurisdiction if it is not otherwise so subject. The Company will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request for distribution of the Shares. (v) The Company will deliver to, or upon the order of, the Representative, from time to time, as many copies of any Preliminary Prospectus as the Representative may reasonably request. The Company will deliver to, or upon the order of, the Representative during the period when delivery of ~~such Pricing Disclosure Package or~~ a Prospectus (or, in lieu thereof, the notice referred to in under Rule 173(a) under the ~~Securities~~ Act) (the “Prospectus Delivery Period”) is required under the Act, as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representative may reasonably request. The Company will deliver to the Underwriters such number of copies of the Registration Statement (including such number of copies of the exhibits filed therewith that may reasonably be requested), including documents incorporated by reference therein, and of all amendments thereto, as the Representative may reasonably request. (vi) The Company will comply with the Act and the Rules and Regulations, and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion of the distribution of the Shares as contemplated in this Agreement and the Prospectus so long as the offering and this Agreement are not terminated. If during the period in which a prospectus (or, in lieu thereof, the notice referred to under Rule 173(a) under the Act) is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion of the Representative, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if it ~~shall be~~ is necessary at any time to amend or supplement the ~~Pricing Disclosure Package, the~~ Prospectus ~~or either Registration Statement~~ to comply with ~~the Securities Act or the Rules and Regulations, or to file under the Exchange Act so as to comply therewith~~ any ~~document incorporated by reference in either Registration Statement, the Pricing Disclosure Package or the Prospectus or in any amendment thereof or supplement thereto~~law, the Company promptly will ~~notify you promptly and~~ either (A) prepare and file with the Commission an appropriate amendment ~~or supplement (in form and substance satisfactory to you) which will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment~~ to the Registration ~~Statements declared effective as soon as possible. (ii) The Company will not, without the prior consent of the Representative, (A) make any offer relating~~ Statement or supplement to the ~~Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, except for any Issuer Free Writing~~ Prospectus ~~set forth in Annex IV hereto and any electronic road show previously approved by the Representative,~~ or (B) ~~file, refer to, approve, use or authorize~~ prepare and file with the ~~use of any “free writing prospectus” as defined in Rule 405~~ Commission an appropriate filing under the ~~Securities~~ Exchange Act which shall be incorporated by reference in the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with ~~respect~~ applicable law. (vii) If the General Disclosure Package is being used to solicit offers to buy the ~~Offering or~~ Shares at a time when the ~~Notes other than as set forth in Annex IV hereto. If at any time~~ Prospectus is not yet available to prospective purchasers and any event shall ~~have occurred~~ occur or condition shall exist as a result of ~~which any Issuer Free Writing Prospectus as then amended or supplemented would~~which, in the judgment of the ~~Underwriters~~ Company or ~~the Company, conflict with the information~~ in the ~~Registration Statements, the Preliminary Prospectus or the Prospectus as then amended or supplemented or would, in the judgment~~ reasonable opinion of the ~~Underwriters~~ Representative, it becomes necessary to amend or supplement the ~~Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary~~ General Disclosure Package in order to make the statements therein, in the light of the ~~circumstances existing at the time of delivery to the purchaser~~circumstances, not misleading, or if to ~~comply~~ make the statements therein not conflict with the ~~Securities Act~~ information contained in the Registration Statement then on file, or ~~the Rules and Regulations~~ if it ~~shall be~~ is necessary at any time to amend or supplement the General Disclosure Package to comply with any ~~Issuer Free Writing Prospectus~~law, the Company promptly will ~~notify~~ either (A) prepare, file with the ~~Representative promptly and,~~ Commission (if ~~requested by the Representative, prepare~~ required) and furnish ~~without charge~~ to ~~each Underwriter~~ the Underwriters and any dealers an appropriate amendment or supplement ~~(in form and substance satisfactory~~ to the ~~Representative~~General Disclosure Package or (B) ~~that will correct such statement, omission or conflict or effect such compliance. (iii) The Company has complied~~ prepare and ~~will comply~~ file with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus. (iv) The Company will promptly deliver to each of Commission an appropriate filing under the ~~Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statements, all amendments of and supplements to such documents, if any, all documents~~ Exchange Act which shall be incorporated by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration ~~Statements and Issuer Free Writing Prospectuses, if any, and Prospectus or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 a.m., New York time~~Statement then on file, or ~~if it is not possible to do~~ so ~~prior to such time, as soon thereafter as practicable, on~~ that the ~~business day next succeeding the date of this Agreement and from time to time thereafter the Company~~ General Disclosure Package will ~~furnish the Underwriters~~ comply with copies of the Prospectus in New York City in such quantities as you may reasonably request. The Company will timely file the Prospectus with the Commission as required by Rule 424(b) of the Rules and Regulationsapplicable law. (v) The Company will endeavor in good faith, in cooperation with you, at or prior to the date of the Prospectus, to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process where it is not already so subject. (viviii) The Company will make generally available ~~(within the meaning of Section 11(a) of the Securities Act)~~ to its security ~~holders and to the Underwriters and the Independent Underwriter~~ holders, as soon as ~~practicable~~it is practicable to do so, but in any event not later than ~~45 days~~ 15 months after the ~~end of its fiscal quarter in which the first anniversary~~ effective date of the ~~date of the Prospectus occurs~~Registration Statement, an earnings statement ~~of the Company and its subsidiaries~~ (which need not be audited) ~~complying with the provisions of Rule 158 of the Regulation~~ in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration ~~Statements~~Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 under the Act and will advise you in writing when such statement has been so made available. (~~vii~~ix) ~~During the period from the date hereof until 45 calendar days after~~ Prior to the Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Notes (other than (A) the Notes, (B) the Guarantees and (C) commercial paper issued in the ordinary course of business), without the Representative’s prior written consent. (viii) Whether or not required by the Rules and Regulations, so long as any Notes are outstanding and so long as the Indenture so requires, the Company (A) will furnish to ~~you at your reasonable request copies of all reports or other communications (financial or other) furnished to security holders and (B) will deliver to you (1)~~ the Underwriters, as soon as they have been prepared by or are available, copies of any and all reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and (2) on or before July 12, 2008, such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis available to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission), provided, in the case of each of clauses (A) and (B) aboveCompany, a copy of any unaudited interim financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Registration Statement, the General Disclosure Package and the Prospectus; provided that, such ~~information is not already filed with the Commission pursuant to EXXXX.~~ financial statements described in this subsection (ix) ~~The Company will apply~~ shall only be provided the ~~proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package~~Underwriters if such financial statements are not otherwise publicly available. (x) ~~The~~ No offering, pledge, sale, contract to sell, short sale or other disposition of any shares of Common Stock of the Company ~~will use its best efforts~~ or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock (or agreement for such) other than pursuant to ~~do or perform, or cause~~ (i) equity incentive plans as in existence on the date of this Agreement and as may be amended pursuant to the proposal to be ~~done or performed, all things required or necessary~~ presented at the special meeting of stockholders of the Company to be ~~done~~ held December 19, 2013, (ii) pursuant to the exchange, exercise or conversion of warrants or convertible securities outstanding as of the date of this Agreement, (iii) the filing of one or more registration statements on Form S-8 with the Commission, (iv) the issuance of up to an aggregate of 2 million shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for an aggregate of no more than 2 million shares of Common Stock or derivative of up to 2,000,000 shares of Common Stock in connection with the Company’s acquisition of one or more businesses, products or technologies, joint ventures, commercial relationships or other strategic corporate transactions, including, without limitation, the issuance of shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock to finance any such acquisition or other strategic corporate transaction, provided that each recipient of shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock pursuant to this clause or (iv) shall execute and ~~performed under this Agreement~~ deliver to the Representative a letter substantially in the form attached hereto as Exhibit B) will be made for a period of 90 days after the date of the Prospectus, directly or indirectly, by the Company ~~and~~ otherwise than contemplated hereunder or with the ~~Guarantors~~ prior written consent of the Representative, provided that the foregoing restrictions will not restrict the Company from, during such 90-day restricted period (or such longer period as provided for in the immediately following sentence), making an offer or entering into an agreement, understanding, contract, commitment or arrangement to sell shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock after such 90-day period (or such longer period as provided for in the immediately following sentence) in connection with the Company’s acquisition of one or more businesses, products or technologies, joint ventures, commercial relationships or other strategic corporate transactions, including, without limitation, the issuance of shares of Common Stock of the Company or other securities convertible into or exchangeable or exercisable for shares of Common Stock or derivative of Common Stock to finance any such acquisition or other strategic corporate transaction. Notwithstanding the foregoing, if (A) during the last 17 days of the 90-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs, or (B) prior to the ~~Closing Date and~~ expiration of the 90-day restricted period, the Company announces that it will release earnings results during the 16-day period following the last day of the 90-day restricted period, then in each case the restrictions imposed by this Agreement shall continue to ~~satisfy all conditions precedent~~ apply until the expiration of the 18-day period beginning on the date of the release of the earnings results or the occurrence of material news or a material event relating to the ~~delivery~~ Company, as the case may be, unless the Representative waives, in writing, such extension. The Company shall promptly notify the Representative of any earnings release, news or event that may give rise to an extension of the ~~Notes~~initial 90-day restricted period. (xi) The Company will use its best efforts ~~in cooperation with~~ to list the ~~Underwriters~~ Shares, subject to ~~permit~~ notice of issuance, on the ~~Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company~~NASDAQ Capital Market. (xii) The Company ~~will take all reasonable action necessary to enable Standard & Poor’s Corporation~~ has caused each officer, director and ~~Mxxxx’x Investors Service, Inc. to provide their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance~~ stockholders of the ~~Notes~~Company listed on Schedule V to execute and deliver to you, on or prior to the date of this agreement, a letter or letters, substantially in the form attached hereto as Exhibit B (the “Lockup Agreement”). (xiii) The Company ~~has~~ shall apply the net proceeds of its sale of the Shares as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. (xiv) The Company shall not ~~and~~ invest, or otherwise use the proceeds received by the Company from its sale of the Shares in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act. (xv) The Company will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Common Stock. (xvi) The Company will not ~~(and has not permitted its affiliates to, and will cause its controlled affiliates not to)~~ take, directly or indirectly, any action ~~which is~~ designed to cause or ~~which constitutes~~ result in, or ~~which~~ that has constituted or might reasonably be expected to ~~cause or result in~~ constitute, the stabilization or manipulation of the price of any ~~security~~ securities of the Company to facilitate the sale or resale of the Notes and neither the Company nor any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action prohibited by Regulation M under the Exchange ActCompany. (~~xiv~~xvii) ~~If, at any time when a prospectus relating~~ Prior to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, a stop order suspending the effectiveness of either Registration Statement has been issued or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or a proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the Offering has been initiated or, to the Company’s knowledge, threatened by the CommissionClosing Date, the Company will ~~notify you promptly~~ not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, its condition, financial or otherwise, or its earnings, business, operations or prospects, or the offering of the Shares, without the prior written consent of the Representative, unless in the reasonable judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law or by NASDAQ Capital Market rules, in which case the Company shall use its reasonable best efforts to ~~prevent~~ allow the ~~issuance~~ Underwriters reasonable time to comment on such release or other communication in advance of ~~any~~ such order suspending the effectiveness of either Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (xv) The Company, during the period when a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunderissuance. (b) Each ~~Underwriter, severally and not jointly, covenants and agrees with the Company that such~~ Underwriter will not ~~use or refer~~ make any offer relating to ~~any~~ the Shares that would constitute a constitute a “free writing prospectus” (as defined in Rule 405 under the ~~Securities~~ Act) ~~without the prior written consent of the Company if such Underwriter’s use of or reference~~ required to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (as defined in Rule 433 under the Securities Act); provided that (i) no such consent shall be ~~required with respect to any such issuer information contained in any document~~ filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 4(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from any issuer information with respect to which the Company has given its prior written consent (“Permitted Issuer Information”). Each Underwriter also, severally and not jointly, represents and agrees that such Underwriter has not used or referred to any “free writing prospectus” in connection with the offering of the Notes that includes any information other than Permitted Issuer Information if such “free writing prospectus” conflicts with information contained in (i) the Registration Statements, including the Pricing Disclosure Package and the Prospectus, and not superseded or modified or (ii) any document filed or furnished under Rule 433 under the ~~Exchange Act that is incorporated by reference into the Registration Statements and not superseded or modified~~Act.

Appears in 1 contract

Samples: Underwriting Agreement (Global Eagle Entertainment Inc.)

Covenants of the Company and the Underwriters. (a) The Company covenants and agrees with ~~each of~~ the Underwriters ~~and with the Independent Underwriter~~ that: (i) IfThe Registration Statement and any amendments thereto have been declared effective, and if Rule 430A is used or the filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus (properly completed if Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time period and will provide evidence satisfactory to the Lead Managers of such timely filing. The Company will notify you immediately (and, if requested by the Lead Managers, will confirm such notice in writing) (A) when the Registration Statement and any amendments thereto become effective, (B) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information, (C) of the Company's intention to file or prepare any supplement or amendment to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus, (D) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, including but not limited to Rule 462(b) under the Securities Act, (E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or the use of the Prospectus, the Pricing Prospectus or any Issuer Free Writing Prospectus or of the initiation, or the threatening, of any proceedings therefor, it being understood that the Company shall make every effort to avoid the issuance of any such stop order, (F) of the receipt of any comments from the Commission, and (G) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Company will make every reasonable effort to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible. The Company will only file an amendment to the Registration Statement or any amendment of or supplement to the Prospectus (including the prospectus required to be filed pursuant to Rule 424(b)) or file or use any Issuer Free Writing Prospectus that differs from the prospectus on file at the time of the effectiveness of the Registration Statement that is in form and substance reasonably satisfactory to the Lead Managers. The Company will provide the Lead Managers with copies of all such amendments, filings and other documents a sufficient time prior to any filing or other publication thereof to permit the Lead Managers a reasonable opportunity to review and comment thereon. (ii) The Company shall comply with the Securities Act and the Exchange Act to permit completion of the distribution of the Shares by the Underwriters as contemplated in this Agreement, the Registration Statement, the Pricing Prospectus and the Prospectus. If at any time when a prospectus relating to the ~~Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)~~ Shares is required to be delivered under the ~~Act~~Securities Act or the Exchange Act in connection with the sales of Shares, any event shall have occurred as a result of which ~~either Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus) or~~ the Prospectus as then amended or supplemented would, in the judgment of the Underwriters ~~and the Independent Underwriter~~ or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the ~~case of the Prospectus and the Pricing Disclosure Package, in the~~ light of the circumstances existing at the time of delivery ~~of such Pricing Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)~~ to the purchaser, not misleading, or if to comply with the Securities Act, the Exchange Act or the Rules and Regulations it shall be necessary at any time to amend or supplement the ~~Pricing Disclosure Package, the~~ Prospectus or either Registration Statement to comply with the Securities Act or the Rules and Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in either Registration Statement~~, the Pricing Disclosure Package or the Prospectus or in any amendment thereof or supplement thereto~~, the Company will notify you promptly and prepare and file with the ~~Commission~~ Commission, subject to Section 4(a)(i) hereof, an appropriate amendment or supplement (in form and substance satisfactory to ~~you~~the Lead Managers) which will correct such statement or omission or ~~which will~~ effect such compliance and will use its best efforts to have any amendment to the Registration ~~Statements~~ Statement declared effective as soon as possible. (iiiii) The Company ~~will not~~shall retain, ~~without~~ in accordance with the ~~prior consent of the Representative~~Rules and Regulations, ~~(A) make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, except for any~~ all Issuer Free Writing Prospectus set forth in Annex IV hereto and any electronic road show previously approved by the Representative, or (B) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect Prospectuses not required to be filed pursuant to the ~~Offering or the Notes other than as set forth in Annex IV hereto~~Rules and Regulations. If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, conflict with the information in the Registration ~~Statements~~Statement, the ~~Preliminary~~ Pricing Prospectus or the Prospectus as then amended or supplemented or would, in the judgment of the Underwriters or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act, the Exchange Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the ~~Representative~~ Lead Managers promptly ~~and~~and prepare, ~~if requested by the Representative~~subject to Section 4(a)(i) hereof, ~~prepare and furnish without charge to each Underwriter~~ an appropriate amendment or supplement (in form and substance satisfactory to the ~~Representative~~Lead Managers) ~~that~~ which will correct such statement, omission or conflict or to effect such compliance. (~~iii~~iv) The Company ~~has complied~~ will promptly deliver to each of you and Underwriters' Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will ~~comply with~~ maintain in the ~~requirements~~ Company's files manually signed copies of ~~Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery,~~ such documents for at least five years after the date of filing~~, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus. (iv)~~ . The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration ~~Statements~~Statement, all Issuer Free Writing Prospectuses and all amendments of and supplements to such documents, if any, ~~all documents incorporated by reference in the Registration Statements and Issuer Free Writing Prospectuses, if any, and Prospectus or any amendment thereof or supplement thereto,~~ as you may reasonably request. Prior to ~~10:00 a.m.~~12:00 P.M., New York City time~~, or if it is not possible to do so prior to such time, as soon thereafter as practicable~~, on the business day next succeeding the date of this Agreement and from time to time ~~thereafter~~ thereafter, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request~~. The Company will timely file the Prospectus with the Commission as required by Rule 424(b) of the Rules and Regulations~~. (v) The Company consents to the use and delivery of the Preliminary Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act. (vi) The Company will ~~endeavor in good faith~~use its reasonable best efforts, in cooperation with ~~you~~the Lead Managers, at or prior to the ~~date~~ time of effectiveness of the ~~Prospectus~~Registration Statement, to qualify the ~~Notes~~ Shares for offering and sale under the securities laws relating to the offering or ~~Blue Sky laws~~ sale of the Shares of such ~~jurisdictions~~ jurisdictions, domestic or foreign, as ~~you~~ the Lead Managers may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process ~~where it is not already so subject~~in any jurisdiction. (vivii) The Company will make generally available ~~(within the meaning of Section 11(a) of the Securities Act)~~ to its security holders and to the Underwriters ~~and the Independent Underwriter~~ as soon as practicable, but in any event not later than ~~45 days~~ twelve months after the ~~end of its fiscal quarter in which the first anniversary~~ effective date of the ~~date of~~ Registration Statement (as defined in Rule 158(c) under the ~~Prospectus occurs~~Securities Act), an earnings statement of the Company and ~~its subsidiaries~~ the Subsidiaries (which need not be audited) complying with ~~the provisions of Rule 158~~ Section 11(a) of the ~~Regulation covering a period of~~ Securities Act and the Rules and Regulations (including, at ~~least 12 consecutive months beginning after~~ the ~~effective date~~ option of the ~~Registration Statements. (vii) During the period from the date hereof until 45 calendar days after the Closing Date~~Company, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Notes (other than (A) the Notes, (B) the Guarantees and (C) commercial paper issued in the ordinary course of businessRule 158)~~, without the Representative’s prior written consent~~. (viii) ~~Whether or not required by~~ During the ~~Rules and Regulations~~period of 90 days from the date of the Prospectus, ~~so long as any Notes are outstanding and so long as~~ without the ~~Indenture so requires~~prior written consent of the Lead Managers, the Company (A) will ~~furnish~~ not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, pledge, borrow or otherwise dispose of any Relevant Security, or make any announcement of any of the foregoing, (B) will not establish or increase any "put equivalent position" or liquidate or decrease any "call equivalent position" (in each case within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Relevant Security, and (C) will not otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; and the Company will cause each person listed in Schedule II attached hereto to execute and deliver an agreement, substantially in the form of Annex VIII hereto (a "Lock-Up Agreement"), not to engage in any of the aforementioned transactions on such person's own behalf, other than the sale by the Company of Shares as contemplated by this Agreement and the grant and exercise of options under, or the issuance and sale of shares of Common Stock pursuant to, employee stock option plans in effect on the date hereof, each as described in the Registration Statement and the Prospectus. The Company will not file with, or submit to, the Commission a registration statement under the Securities Act in connection with any transaction by the Company or any person that is prohibited pursuant to the foregoing, except for registration statements on Form S-8 relating to employee benefit plans or on Form F-4 relating to corporate reorganizations. If (A) during the period that begins on the date that is 15 calendar days plus 3 business days before the last day of the 90-day restricted period referred to in the immediately preceding paragraph and ends on the last day of such 90-day restricted period, the Company issues a earnings release or material news or a material event relating to the Company occurs or (B) prior to the expiration of such 90-day period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of such 90-day period, the restrictions imposed by the immediately preceding paragraph shall continue to apply until the expiration of the date that is 15 calendar days plus 3 business days after the date on which the issuance of the earnings release or the material news or material event occurs unless the Lead Managers waive, in writing, such extension. The Company will provide the Underwriters and each stockholder subject to the "Lock-Up Period" (as defined in the Lock-Up Agreement) pursuant to the Lock-Up Agreements with prior notice of any announcement that the Company reasonably believes gives rise to an extension of the Lock-Up Period under the terms of its Lock-Up Agreement. Notwithstanding the foregoing, nothing contained in this Agreement shall prohibit the Company from issuing, offering, selling, exchanging or otherwise transferring, or agreeing to issue, sell, exchange or otherwise transfer, up to [ ] shares of the Company's Common Stock, or any securities convertible into, or exercisable or exchangeable for, such shares of Common Stock, in any transaction or series of transactions in which the consideration therefor consists solely of the direct or indirect ownership interests in one or more dry bulk carriers or newbuilding contracts for dry bulk carriers or the capital stock or ownership interests in any organization whose assets consist principally of such dry bulk carriers or newbuilding contracts; provided that the person to whom any such shares or other securities are issued, sold or otherwise transferred executes and delivers to the Lead Managers a Lock-Up Agreement. (ix) The Company will make available to you ~~at your reasonable request~~ (A) during the period of five years from the effective date of the Registration Statement, copies of all reports or other communications (financial or other) furnished to security holders ~~and (B) will deliver~~ or from time to ~~you (1)~~ time published or publicly disseminated by the Company and, as soon as they are available, copies of any reports, financial statements and ~~all reports and financial~~ proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is ~~listed~~ listed; and (~~2) on or before July 12~~B), ~~2008~~during the period of two years from the effective date of the Registration Statement, such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial ~~statements~~ information to be on a consolidated basis to the extent the accounts of the Company and ~~its subsidiaries~~ the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission); provided that any information or documents available on XXXXX shall be considered sufficiently made available for the purposes of this Section 4(a)(ix); and provided further that the Underwriters shall sign a confidentiality agreement, ~~provided~~containing such customary terms and conditions as the Company shall reasonably request, ~~in the case of each of clauses (A) and~~ regarding any additional information made available pursuant to Clause (B) ~~above, a copy~~ of such information is not already filed with the Commission pursuant to EXXXX. (ix) The Company will apply the proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Packagethis Section 4(a)(ix). (x) The Company will ~~use its best efforts to do or perform, or cause to be done or performed, all things required or necessary to be done and performed under this Agreement by~~ apply the ~~Company and~~ net proceeds from the ~~Guarantors prior to the Closing Date and to satisfy all conditions precedent to the delivery~~ sale of the ~~Notes~~Shares as set forth under the caption "Use of Proceeds" in the Prospectus. (xi) The Company will use its best efforts ~~in cooperation with~~ to list the Underwriters to permit the Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company. (xii) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation and Mxxxx’x Investors Service, Inc. to provide their respective credit ratings Shares on the ~~Company’s outstanding senior subordinated debt~~NYSE and will use its reasonable best efforts either (i) to maintain the listing of the Shares on the NYSE, ~~including for this purpose~~(ii) to list, and to maintain the listing of, the ~~issuance~~ Shares on any other national securities exchange registered pursuant to Section 6(a) of the ~~Notes.~~ Exchange Act or (~~xiii~~iii) ~~The Company has not and will not (and has not permitted its affiliates to~~to arrange for the quotation, and ~~will cause its controlled affiliates not to~~to maintain the quotation of, the Shares in an automated interdealer quotation system of a national securities association registered pursuant to Section 15A(a) ~~take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the stabilization or manipulation~~ of the price of any security of the Company to facilitate the sale or resale of the Notes and neither the Company nor any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action prohibited by Regulation M under the Exchange Act. (xiv) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, a stop order suspending the effectiveness of either Registration Statement has been issued or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or a proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the Offering has been initiated or, to the Company’s knowledge, threatened by the Commission, the Company will notify you promptly and use its best efforts to prevent the issuance of any such order suspending the effectiveness of either Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (xvxii) The Company, during the period when ~~a prospectus (or, in lieu thereof,~~ the ~~notice referred to in Rule 173(a) under the Securities Act)~~ Prospectus is required to be delivered under the ~~Act or the Exchange~~ Securities Act, will file all documents required to be filed with the Commission pursuant to ~~Section 13, 14 or 15 of~~ the ~~Exchange~~ Securities Act and the Rules and Regulations within the time periods required thereby. (xiii) The Company will use its best efforts to do and perform all things required to be done or performed under this Agreement by the ~~Exchange Act~~ Company prior to the Closing Date or the Additional Closing Date, as the case may be, and to satisfy all conditions precedent to the delivery of the Firm Shares and the ~~rules~~ Additional Shares. (xiv) The Company will not take, and ~~regulations thereunder~~will cause its affiliates (within the meaning of Rule 144 under the Securities Act) not to take, directly or indirectly, any action which constitutes or is designed to cause or result in, or which would constitute, cause or result in, the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Shares. (xv) The Company will not, without the prior written consent of the Lead Managers, make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus. Prior to the last date on which an Additional Closing Date, if any, may occur, the Company will not distribute any offering material in connection with the Offering other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Lead Managers have previously consented in writing and any Issuer Free Writing Prospectus set forth on Schedule IV hereto. (b) Each ~~Underwriter,~~ Underwriter severally ~~and not jointly,~~ covenants and agrees with the Company that such Underwriter will not use or refer to any “"free writing prospectus” " (as defined in Rule ~~405 under the Securities Act~~405) without the prior written consent of the Company ~~if such Underwriter’s~~ where the use of or reference to such “free writing ~~prospectus”~~ prospectus would require the ~~Company to file with the Commission~~ filing of any “"issuer information” " (as defined in Rule ~~433 under the Securities Act); provided that (i~~433) ~~no such consent shall be required with respect to any such issuer information contained in any document filed by the Company~~ with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 4(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from any issuer information with respect to which the Company has given its prior written consent (“Permitted Issuer Information”). Each Underwriter also, severally and not jointly, represents and agrees that such Underwriter has not used or referred to any “free writing prospectus” in connection with the offering of the Notes that includes any information other than Permitted Issuer Information if such “free writing prospectus” conflicts with information contained in (i) the Registration Statements, including the Pricing Disclosure Package and the Prospectus, and not superseded or modified or (ii) any document filed or furnished under the Exchange Act that is incorporated by reference into the Registration Statements and not superseded or modifiedCommission.

Appears in 1 contract

Samples: Underwriting Agreement (Diana Shipping Inc.)

Covenants of the Company and the Underwriters. (a) The Company ~~covenants~~ represents and agrees ~~with each of the Underwriters and with the Independent Underwriter~~ that: (i) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, any event shall have occurred as a result of which either Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus) or the Prospectus as then amended or supplemented would, in the judgment of the Underwriters and the Independent Underwriter or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Prospectus and the Pricing Disclosure Package, in the light of the circumstances existing at the time of delivery of such Pricing Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) to the purchaser, not misleading, or if it shall be necessary at any time to amend or supplement the Pricing Disclosure Package, the Prospectus or either Registration Statement to comply with the Securities Act or the Rules and Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in either Registration Statement, the Pricing Disclosure Package or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify you promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance satisfactory to you) which will correct such statement or omission or which will effect such compliance and will use its best efforts to have any amendment to the Registration Statements declared effective as soon as possible. (ii) The Company will not, without the prior consent of the ~~Representative~~Representatives, ~~(A)~~ it has not made and will not make any offer relating to the ~~Notes~~ Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act; each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Securities ~~Act, except for~~ that would constitute a free writing prospectus required to be filed with the Commission; any such free writing prospectus the use of which has been consented to by the Company and the Representatives is listed on Schedule B(i) or Schedule B(iii) hereto. (b) The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing ~~Prospectus set forth in Annex IV hereto~~ Prospectus, including timely filing with the Commission or retention where required and ~~any electronic road show previously approved by the Representative, or~~ legending. (Bc) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect to the Offering or the Notes other than as set forth in Annex IV hereto. If The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus or Written Testing-the-Waters Communication any event ~~shall have~~ occurred or occurs as a result of which ~~any~~ such Issuer Free Writing Prospectus ~~as then amended~~ or ~~supplemented would, in the judgment of the Underwriters or the Company,~~ Written Testing-the-Waters Communication would conflict with the information in the Registration ~~Statements~~Statement, the ~~Preliminary~~ Pricing Prospectus or the Prospectus ~~as then amended~~ or ~~supplemented or would, in the judgment of the Underwriters or the Company,~~ would include an untrue statement of a material fact or omit to state any material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances ~~existing at the time of delivery to the purchaser~~then prevailing, not misleading, ~~or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus,~~ the Company will ~~notify~~ give prompt notice thereof to the ~~Representative promptly~~ Representatives and, if requested by the ~~Representative~~Representatives, will prepare and furnish without charge to each Underwriter an ~~appropriate amendment~~ Issuer Free Writing Prospectus, Written Testing-the-Waters Communication or ~~supplement (in form and substance satisfactory to the Representative) that~~ other document which will correct such ~~statement~~conflict, ~~omission~~ statement or ~~conflict~~ omission; provided, however, that this representation and warranty shall not apply to any statements or ~~effect such compliance. (iii) The Company has complied and will comply with the requirements of Rule 433 with respect to each~~ omissions in an Issuer Free Writing Prospectus ~~including, without limitation, all prospectus delivery, filing, record retention~~ made in reliance upon and ~~legending requirements applicable to each such Issuer Free Writing Prospectus~~in conformity with the Underwriter Information. (ivd) The Company ~~will promptly deliver~~ represents and agrees that (i) it has not engaged in, or authorized any other person to ~~each~~ engage in, any Testing-the-Waters Communications, other than Testing-the-Waters Communications with the prior consent of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statements, all amendments of and supplements to such documents, if any, all documents incorporated by reference in the Registration Statements and Issuer Free Writing Prospectuses, if any, and Prospectus or any amendment thereof or supplement thereto, as you may reasonably request. Prior to 10:00 a.m., New York time, or if it is not possible to do so prior to such time, as soon thereafter as practicable, on the business day next succeeding the date of this Agreement and from time to time thereafter Representatives with entities that the Company ~~will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may~~ reasonably request. The Company will timely file the Prospectus with the Commission as required by Rule 424(b) of the Rules and Regulations. (v) The Company will endeavor in good faith, in cooperation with you, at or prior to the date of the Prospectus, to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as you may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process where it is not already so subject. (vi) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to the Underwriters and the Independent Underwriter as soon as practicable, but in any event not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the date of the Prospectus occurs, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with the provisions of Rule 158 of the Regulation covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statements. (vii) During the period from the date hereof until 45 calendar days after the Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Notes (other than (A) the Notes, (B) the Guarantees and (C) commercial paper issued in the ordinary course of business), without the Representative’s prior written consent. (viii) Whether or not required by the Rules and Regulations, so long as any Notes believes are outstanding and so long as the Indenture so requires, the Company (A) will furnish to you at your reasonable request copies of all reports or other communications (financial or other) furnished to security holders and (B) will deliver to you (1) as soon as they are available, copies of any and all reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and (2) on or before July 12, 2008, such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission), provided, in the case of each of clauses (A) and (B) above, a copy of such information is not already filed with the Commission pursuant to EXXXX. (ix) The Company will apply the proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package. (x) The Company will use its best efforts to do or perform, or cause to be done or performed, all things required or necessary to be done and performed under this Agreement by the Company and the Guarantors prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Notes. (xi) The Company will use its best efforts in cooperation with the Underwriters to permit the Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company. (xii) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation and Mxxxx’x Investors Service, Inc. to provide their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance of the Notes. (xiii) The Company has not and will not (and has not permitted its affiliates to, and will cause its controlled affiliates not to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes and neither the Company nor any of its affiliated purchasers (qualified institutional buyers as defined in Rule 100 of Regulation M under the Exchange Act) will take any action prohibited by Regulation M under the Exchange Act. (xiv) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, a stop order suspending the effectiveness of either Registration Statement has been issued or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or a proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the Offering has been initiated or, to the Company’s knowledge, threatened by the Commission, the Company will notify you promptly and use its best efforts to prevent the issuance of any such order suspending the effectiveness of either Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (xv) The Company, during the period when a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered 144A under the Act or institutions that are accredited investors as defined Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8) or (a)(9) under the ~~Exchange~~ Act; and (ii) it has not distributed, ~~will file all documents required~~ or authorized any other person to ~~be filed~~ distribute, any Written Testing-the-Waters Communications, other than those distributed with the ~~Commission pursuant to Section 13, 14 or 15~~ prior consent of the ~~Exchange Act within the time periods required by the Exchange Act~~ Representatives; and the ~~rules and regulations thereunder~~Company reconfirms that the Underwriters have been authorized to act on its behalf in engaging in Testing-the-Waters Communications. (be) Each ~~Underwriter, severally and not jointly, covenants~~ Underwriter represents and agrees that any Written Testing-the-Waters Communications undertaken by it were with ~~the Company~~ entities that ~~such Underwriter will not use or refer to any “free writing prospectus” (~~are qualified institutional buyers as defined in Rule ~~405~~ 144A under the ~~Securities Act) without the prior written consent of the Company if such Underwriter’s use of~~ Act or ~~reference to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (~~institutions that are accredited investors as defined in Rule ~~433~~ 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8) or (a)(9) under the ~~Securities~~ Act); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 4(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from any issuer information with respect to which the Company has given its prior written consent (“Permitted Issuer Information”). Each Underwriter also, severally and not jointly, represents and agrees that such Underwriter has not used or referred to any “free writing prospectus” in connection with the offering of the Notes that includes any information other than Permitted Issuer Information if such “free writing prospectus” conflicts with information contained in (i) the Registration Statements, including the Pricing Disclosure Package and the Prospectus, and not superseded or modified or (ii) any document filed or furnished under the Exchange Act that is incorporated by reference into the Registration Statements and not superseded or modified.

Appears in 1 contract

Samples: Underwriting Agreement (HCI Group, Inc.)

Covenants of the Company and the Underwriters. The Company covenants and agrees as follows: (a) The Company ~~covenants~~ will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and ~~agrees with each~~ any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form reasonably approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second Business Day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by the Rules. (b) The Company shall promptly advise the Representative in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the ~~Underwriters~~ Registration Statement, any Preliminary Prospectus or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or the institution or threatening of any proceeding for that purpose and (D) of the receipt by the Company of any notification with respect to the ~~Independent Underwriter that:~~suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or distribute any amendment or supplement to the Pricing Disclosure Package or the Prospectus or any document incorporated by reference in the Registration Statement unless the Company has furnished the Representative a copy for its review prior to filing and shall not file any such proposed amendment or supplement to which the Representative reasonably objects. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (ic) If, at any time when a prospectus relating to the Notes ~~(or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)~~ is required to be delivered under the ~~Act~~Securities Act or the Rules, any event ~~shall have occurred~~ occurs as a result of which ~~either Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus) or~~ the Prospectus as then amended or supplemented ~~would, in the judgment of the Underwriters and the Independent Underwriter or the Company,~~ would include an any untrue statement of a material fact or omit to state any material fact ~~required to be stated therein or~~ necessary to make the statements ~~therein, in the case of the Prospectus and the Pricing Disclosure Package,~~ therein in the light of the circumstances ~~existing at the time of delivery of such Pricing Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a)~~ under ~~the Securities Act) to the purchaser,~~ which they were made not misleading, or if it shall be necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package, the~~ Prospectus ~~or either Registration Statement~~ to comply with the Securities ~~Act~~ Act, the Rules or the Rules and Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in either Registration Statement, the Pricing Disclosure Package or the Prospectus or in any amendment thereof or supplement theretoTrust Indenture Act, the Company ~~will notify you~~ promptly ~~and~~ shall prepare and file with the ~~Commission~~ Commission, subject to the second sentence of Section 4(b), an ~~appropriate~~ amendment or supplement ~~(in form and substance satisfactory to you)~~ which ~~will~~ shall correct such statement or omission or an amendment which will effect such compliance and will use its best efforts to have any amendment to the Registration Statements declared effective as soon as possible. (ii) The Company will not, without the prior consent of the Representative, (A) make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, except for any Issuer Free Writing Prospectus set forth in Annex IV hereto and any electronic road show previously approved by the Representative, or (B) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect to the Offering or the Notes other than as set forth in Annex IV hereto. If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, conflict with the information in the Registration Statements, the Preliminary Prospectus or the Prospectus as then amended or supplemented or would, in the judgment of the Underwriters or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representative promptly and, if requested by the Representative, prepare and furnish without charge to each Underwriter an appropriate amendment or supplement (in form and substance satisfactory to the Representative) that will correct such statement, omission or conflict or effect such compliance. (~~iii~~d) The Company ~~has complied and will comply~~ shall make generally available to its security holders as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12-month period coincides with the ~~requirements~~ Company’s fiscal year), an earning statement (which need not be audited) of the Company, covering such 12-month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus158 of the Rules. (ive) The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statements, all amendments of and supplements to such documents, if any, all documents incorporated by reference in the Registration Statements and Issuer Free Writing Prospectuses, if any, and Prospectus or any amendment thereof or supplement thereto, as you may shall reasonably request. Prior to 10:00 a.m., New York time, or if it is not possible to do so prior to such time, as soon thereafter as practicable, on the business day next succeeding the date of this Agreement and from time to time thereafter the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request. The Company will timely file the Prospectus cooperate with the ~~Commission as required by Rule 424(b) of the Rules~~ Representative and ~~Regulations. (v) The Company will endeavor~~ its counsel in ~~good faith, in cooperation with you, at or prior to the date of the Prospectus,~~ endeavoring to qualify the Notes and the shares of Common Stock issuable upon conversion of the Notes for ~~offering~~ offer and sale in connection with the offering under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representative reasonably may designate and to shall maintain such ~~qualification~~ qualifications in effect ~~for~~ so long as required for the distribution ~~thereof~~of the Notes; ~~except~~ provided, however, that ~~in no event shall~~ the Company shall not be ~~obligated~~ required in connection ~~therewith~~ therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of process ~~where it is not already so subject~~in any jurisdiction or subject itself to taxation as doing business in any jurisdiction. (vi) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to the Underwriters and the Independent Underwriter as soon as practicable, but in any event not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the date of the Prospectus occurs, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with the provisions of Rule 158 of the Regulation covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statements. (vii) During the period from the date hereof until 45 calendar days after the Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Notes (other than (A) the Notes, (B) the Guarantees and (C) commercial paper issued in the ordinary course of business), without the Representative’s prior written consent. (viii) Whether or not required by the Rules and Regulations, so long as any Notes are outstanding and so long as the Indenture so requires, the Company (A) will furnish to you at your reasonable request copies of all reports or other communications (financial or other) furnished to security holders and (B) will deliver to you (1) as soon as they are available, copies of any and all reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and (2) on or before July 12, 2008, such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission), provided, in the case of each of clauses (A) and (B) above, a copy of such information is not already filed with the Commission pursuant to EXXXX. (ix) The Company will apply the proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package. (x) The Company will use its best efforts to do or perform, or cause to be done or performed, all things required or necessary to be done and performed under this Agreement by the Company and the Guarantors prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Notes. (xi) The Company will use its best efforts in cooperation with the Underwriters to permit the Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company. (xii) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation and Mxxxx’x Investors Service, Inc. to provide their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance of the Notes. (xiii) The Company has not and will not (and has not permitted its affiliates to, and will cause its controlled affiliates not to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes and neither the Company nor any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action prohibited by Regulation M under the Exchange Act. (xiv) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, a stop order suspending the effectiveness of either Registration Statement has been issued or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or a proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the Offering has been initiated or, to the Company’s knowledge, threatened by the Commission, the Company will notify you promptly and use its best efforts to prevent the issuance of any such order suspending the effectiveness of either Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (xvf) The Company, during the period when ~~a prospectus (or, in lieu thereof,~~ the ~~notice referred to in Rule 173(a) under the Securities Act)~~ Prospectus is required to be delivered under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the ~~rules and~~ regulations promulgated thereunder. (bg) ~~Each Underwriter~~Without the prior written consent of Deutsche Bank Securities Inc., for a period of 90 days after the date of this Agreement, the Company and the individuals listed on Schedule IV hereto shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company), except for (A) those shares of Common Stock set forth in the Lockup Agreement, (B) the issuance of shares pursuant to the Company’s existing stock option plan or bonus plan as described in the Registration Statement and the Prospectus and (C) the issuance of shares of the Company’s Common Stock upon the exercise or conversion of securities of the Company outstanding on the date hereof and disclosed in the Registration Statement or Prospectus. In the event that during this period, (A) any shares are issued pursuant to the Company’s existing stock option plan or bonus plan that are exercisable during such 90-day period or (B) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 90-day period, the Company shall use its best efforts to obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 90 days after the date of this Agreement, such person will not, without the prior written consent of Deutsche Bank Securities Inc., offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for, any shares of Common Stock) owned by such person. (h) The Company will reserve and keep available at all times, free of preemptive rights, shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue shares of its Common Stock upon conversion of the Notes. (i) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by each of the New York Stock Exchange (including any required registration under the Exchange Act) and the Toronto Stock Exchange in connection with the transactions contemplated by this Agreement. (j) Prior to the Closing Date, the Company will not issue any press release or other communications directly or indirectly or hold any press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Notes without the prior written consent of the Representative unless in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required by law. (k) The Company shall (A) furnish to the Underwriters and counsel for the Underwriters, without charge, copies of the Registration Statement, each Preliminary Prospectus, the Pricing Prospectus and the Prospectus (without exhibits thereto) and all amendments thereof (i) prior to 10:00 a.m. New York City time on the Business Day next succeeding date of this Agreement, (ii) so long as delivery of a prospectus by an underwriter or dealer may be required by the Securities Act or the Rules in connection with the offer, sale or issuance of the Notes (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) and (B) if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a prospectus supplement which will correct such statement or omission or effect such compliance. If applicable, the copies of the Registration Statement, each Preliminary Prospectus, the Pricing Prospectus and the Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent permitted by Regulation S-T; (l) The Company will apply the net proceeds from the offering of the Notes in the manner set forth under “Use of Proceeds” in the Prospectus; (m) The Company will (i) not without the prior consent of the Representative, make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, provided that the prior written consent of the Representative shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto; (any such free writing prospectus the use of which has been consented to by the Company and the Representative is referred to herein as a “Permitted Free Writing Prospectus”); (ii) comply with the requirements of Rules 163, 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or record keeping and legending; (iii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus; and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file; (n) The Company will, if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, (i) give prompt notice thereof to the Representative (ii) and, if requested by the Representative, prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters through the Representative expressly for use therein; (o) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form reasonably satisfactory to the Representative. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form reasonably satisfactory to the Representative, and will use commercially reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will, prior to the Renewal Deadline, take all other commercially reasonable action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the Registration Statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (p) The Company will pay the required filing fees to the Commission relating to the Notes within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act. The Underwriters, severally and not jointly, ~~covenants~~ covenant and ~~agrees with the Company that such~~ agree as follows: (q) Each Underwriter will not ~~use or refer to~~ include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule ~~405 under the Securities Act~~405) used or referred to by such Underwriter without the prior written consent of the Company if such Underwriter’s use of or reference to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (as defined in Rule 433 under the Securities Act); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 4(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from any issuer information with respect to which the Company has given its prior written consent (“Permitted Issuer Information”). Each Underwriter also, severally and not jointly, represents and agrees that such Underwriter has not used or referred to any “free writing prospectus” in connection with the offering of the Notes that includes any information other than Permitted Issuer Information if such “free writing prospectus” conflicts with information contained in (i) the Registration Statements, including the Pricing Disclosure Package and the Prospectus, and not superseded or modified or (ii) any document filed or furnished under the Exchange Act that is incorporated by reference into the Registration Statements and not superseded or modifiedCompany.

Appears in 1 contract

Samples: Underwriting Agreement (Coeur D Alene Mines Corp)

Covenants of the Company and the Underwriters. ~~(a) The~~ In addition to the other covenants and agreements of the Company contained herein, the Company further covenants and agrees with each of the Underwriters ~~and with the Independent Underwriter~~ that: (a) The Company shall prepare the Prospectus in a form approved by you and file such Prospectus pursuant to, and within the time period specified in, Rule 424(b) and Rule 430A or 430C under the Securities Act; prior to the last date on which an Additional Closing Date, if any, may occur, the Company shall file no further amendment to the Registration Statement or amendment or supplement to the Prospectus to which you shall reasonably and timely object in writing after being furnished in advance a copy thereof and given a reasonable opportunity to review and comment thereon; the Company shall notify Bear Xxxxxxx promptly (and, if requested by Bear Xxxxxxx, will confirm such notice in writing) (i) Ifwhen the Registration Statement and any amendments thereto become effective; (ii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information; (iii) of the Company’s intention to file, or prepare any supplement or amendment to, the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus; (iv) of the mailing or the delivery to the Commission for filing of any amendment of or supplement to the Registration Statement or the Prospectus, including but not limited to Rule 462(b); (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 suspending the use of any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or, in each case, of the initiation or threatening of any proceedings therefor; (vi) of the receipt of any comments from the Commission; and (vii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for that purpose. If the Commission shall propose or enter a stop order at any time, the Company will make every effort to prevent the issuance of any such stop order and, if issued, to obtain the lifting of such order as soon as possible. (b) The Company shall comply with the Securities Act and the Exchange Act to permit completion of the distribution of the Shares by the Underwriters as contemplated in this Agreement, the Registration Statement, the Pricing Prospectus and the Prospectus. If at any time when a prospectus relating to the ~~Notes~~ Shares (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities ~~Act~~Act (“Rule 173”)) is required to be delivered under the Securities Act, any event shall have occurred as a result of which ~~either Registration Statement,~~ the Pricing Disclosure Package (prior to the availability of the Prospectus) or the Prospectus as then amended or supplemented would, in the judgment of the Underwriters ~~and the Independent Underwriter~~ or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in ~~the case of the Prospectus and the Pricing Disclosure Package, in the~~ light of the circumstances existing at the time of delivery of such Pricing Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a~~) under the Securities Act~~)) to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement the Pricing Disclosure Package, the Prospectus or ~~either~~ the Registration Statement to comply with the Securities Act or the Rules and Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in either Registration Statement, the Pricing Disclosure Package or the Prospectus or in any amendment thereof or supplement thereto, the Company will notify you promptly and prepare and file with the Commission an appropriate amendment or supplement (in form and substance reasonably satisfactory to ~~you~~Bear Xxxxxxx) ~~which~~ that will correct such statement or omission or ~~which will~~ effect such ~~compliance~~ compliance, and will use its best efforts to have any amendment to the Registration ~~Statements~~ Statement declared effective as soon as possible. (iic) The Company will not, without the prior consent of ~~the Representative~~Bear Xxxxxxx, (Ai) make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule ~~405 under the Securities Act~~405, except for any Issuer Free Writing Prospectus set forth in on Annex IV I hereto and any electronic road show previously approved by ~~the Representative~~Bear Xxxxxxx, or (Bii) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 ~~under the Securities Act~~ with respect to the Offering or the ~~Notes other than as set forth in Annex IV hereto~~Shares. If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, conflict with the information in the Registration ~~Statements~~Statement, the ~~Preliminary~~ Pricing Prospectus or the Prospectus as then amended or supplemented or would, in the judgment of the Underwriters or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify ~~the Representative~~ Bear Xxxxxxx promptly and, if requested by ~~the Representative~~Bear Xxxxxxx, prepare and furnish without charge to each Underwriter an appropriate amendment or supplement (in form and substance reasonably satisfactory to ~~the Representative~~Bear Xxxxxxx) that will correct such statement, omission or conflict or effect such compliance. (~~iii~~d) The Company has complied and will comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus; and the Company has caused there to be made available at least one version of a “bona fide electronic road show” (as defined in Rule 433) in a manner that causes the Company not to be required, pursuant to Rule 433(d) under the Securities Act (“Rule 433(d)”), to file with the Commission any road show. (ive) The Company will promptly deliver to each of you and Underwriters’ Counsel a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith, and will maintain in the Company’s files manually signed copies of such documents for at least five (5) years after the date of filing. The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration ~~Statements~~Statement, any Issuer Free Writing Prospectus and all amendments of and supplements to such documents, if any, ~~all documents incorporated by reference in the Registration Statements and Issuer Free Writing Prospectuses, if any, and Prospectus or any amendment thereof or supplement thereto,~~ as you may reasonably request. Prior to 10:00 ~~a.m.~~A.M., New York time~~, or if it is not possible to do so prior to such time, as soon thereafter as practicable~~, on the business day next succeeding the date of this Agreement and from time to time ~~thereafter~~ thereafter, the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request. . (f) The Company ~~will timely file~~ consents to the use and delivery of the Preliminary Prospectus and each Issuer Free Writing Prospectus set forth on Annex I hereto by the Underwriters in accordance with ~~the Commission as required by~~ Rule ~~424(b~~430 and Section 5(b) of the ~~Rules and Regulations~~Securities Act. (vg) ~~The~~ Promptly from time to time, the Company will ~~endeavor in good faith~~use its best reasonable efforts, in cooperation with ~~you, at or prior to~~ the ~~date of the Prospectus~~Lead Managers, to qualify the ~~Notes~~ Shares for offering and sale under the securities laws relating to the offering or ~~Blue Sky laws~~ sale of the Shares of such ~~jurisdictions~~ jurisdictions, domestic or foreign, as ~~you~~ Bear Xxxxxxx may designate and to maintain such qualification in effect for so long as required for the distribution thereof; except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process ~~where it is not already so subject~~in any jurisdiction. (vih) The Company will make generally available ~~(within the meaning of Section 11(a) of the Securities Act)~~ to its security holders and to the Underwriters ~~and the Independent Underwriter~~ as soon as practicable, but in any event not later than ~~45 days~~ twelve months after the ~~end of its fiscal quarter in which the first anniversary~~ effective date of the ~~date of~~ Registration Statement (as defined in Rule 158(c) under the ~~Prospectus occurs~~Securities Act), an earnings statement of the Company and ~~its subsidiaries~~ the Subsidiaries (which need not be audited) complying with ~~the provisions of Rule 158~~ Section 11(a) of the ~~Regulation covering a~~ Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158). (i) During the period of ~~at least 12 consecutive months~~ one hundred eighty (180) days from the date of the Prospectus (the “Lock-Up Period”), without the prior written consent of Bear Xxxxxxx, on behalf of the Underwriters, the Company (i) will not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, pledge, borrow or otherwise dispose of any Relevant Security, or make any public announcement of any of the foregoing; (ii) will not establish or increase any “put equivalent position” or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Exchange Act and the Rules and Regulations) with respect to any Relevant Security; and (iii) will not otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; and the Company will cause each person or entity (the “Signatories”) listed on (x) Schedule IV(a) attached hereto to execute a lock-up agreement substantially in the form of Annex II(a) hereto (a “Lock-Up Agreement”) and (y) Schedule IV(b) attached hereto to execute a lock-up agreement substantially in the form of Annex II(b) hereto (an “Additional Lock-Up Agreement”). The Lock-Up Agreements and the Additional Lock-Up Agreements shall include provisions that will cause the Signatories not to engage in any of the aforementioned transactions on their own behalf during the Lock-Up Period, with respect to Signatories to the Lock-Up Agreements, and during the period of three (3) years from the date of the Prospectus (the “Additional Lock-Up Period”), with respect to Signatories to the Additional Lock-Up Agreements, other than the sale of Shares as contemplated by this Agreement and the Company’s issuance of Common Stock upon (A) the conversion or exchange of convertible or exchangeable securities outstanding on the date hereof; (B) the exercise of currently outstanding options; (C) the exercise of currently outstanding warrants; and (D) the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof, each as described in the Registration Statement and the Pricing Prospectus. The Company will not file or submit a registration statement under the Securities Act in connection with any transaction by the Company or any person that is prohibited pursuant to the foregoing, except for registration statements on Form S-8 relating to employee benefit plans or on Form F-4 relating to corporate reorganizations. Notwithstanding the foregoing, if (1) during the last seventeen (17) days of the Lock-Up Period or the Additional Lock-Up Period, as the case may be, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (2) prior to the expiration of the Lock-Up Period or the Additional Lock-Up Period, as the case may be, the Company announces that it will release earnings results during the sixteen (16) day period beginning ~~after~~ on the last day of the Lock-Up Period or the Additional Lock-Up Period, as the case may be, the restrictions imposed by the immediately preceding paragraph shall continue to apply until the expiration of the eighteen (18) day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, as applicable, unless Bear Xxxxxxx waives, in writing, such extension. The Company will provide the Lead Managers and any co-managers, each officer and director of the Company and each shareholder and other person or entity listed on Schedule IV(a) or Schedule IV(b) attached hereto with prior notice of any such announcement that gives rise to an extension of the Lock-Up Period or the Additional Lock-Up Period, respectively. (j) During the period of five (5) years from the effective date of the Registration ~~Statements. (vii) During the period from the date hereof until 45 calendar days after the Closing Date~~Statement, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Notes (other than (A) the Notes, (B) the Guarantees and (C) commercial paper issued in the ordinary course of business), without the Representative’s prior written consent. (viii) Whether or not required by the Rules and Regulations, so long as any Notes are outstanding and so long as the Indenture so requires, the Company (A) will ~~furnish~~ make available to you ~~at your reasonable request~~ copies of all reports or other communications (financial or other) ~~furnished~~ made available to security holders or from time to time published or publicly disseminated by the Company, and ~~(B)~~ will deliver to you (1i) as soon as they are available, copies of any reports, financial statements and ~~all reports and financial~~ proxy or information statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is ~~listed~~ listed; and (ii) during the period of two (2) ~~on or before July 12, 2008,~~ years from the effective date of the Registration Statement such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial ~~statements~~ information to be on a consolidated basis to the extent the accounts of the Company and ~~its subsidiaries~~ the Subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission); provided that any information or documents available on XXXXX shall be considered sufficiently made available for purposes of this Section 4(j); and provided further that the Representatives shall sign a confidentiality agreement containing such customary terms and conditions as the Company shall reasonably request, ~~provided, in the case of each of clauses (A) and (B) above, a copy of such~~ regarding any additional information ~~is not already filed with the Commission~~ made available pursuant to ~~EXXXX~~clause (ii) of this Section 4(j). (~~ix) The Company will apply the proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package. (x~~k) The Company will use its best efforts to ~~do or perform, or cause to be done or performed, all things required or necessary to be done and performed under this Agreement by~~ list the ~~Company and~~ Shares on the ~~Guarantors prior to the Closing Date~~ NYSE and to ~~satisfy all conditions precedent to~~ maintain the ~~delivery~~ listing of the ~~Notes~~Shares on the NYSE. (xil) The Company will ~~use its best efforts~~ apply the net proceeds from the sale of the Shares as set forth under the caption “Use of Proceeds” in ~~cooperation with~~ the ~~Underwriters to permit~~ Registration Statement and the ~~Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company~~Pricing Prospectus. (xii) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation and Mxxxx’x Investors Service, Inc. to provide their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance of the Notes. (xiii) The Company has not and will not (and has not permitted its affiliates to, and will cause its controlled affiliates not to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes and neither the Company nor any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action prohibited by Regulation M under the Exchange Act. (xiv) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, a stop order suspending the effectiveness of either Registration Statement has been issued or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or a proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the Offering has been initiated or, to the Company’s knowledge, threatened by the Commission, the Company will notify you promptly and use its best efforts to prevent the issuance of any such order suspending the effectiveness of either Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (xvm) The Company, during the period when a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a~~) under the Securities Act~~)) is required to be delivered ~~under~~ in connection with the ~~Act~~ offer or sale of the ~~Exchange Act~~Shares, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the rules and regulations thereunder. (b) Each Underwriter, severally and not jointly, covenants and agrees with the Company that such Underwriter will not use or refer to any “free writing prospectus” (as defined in Rule 405 under the Securities Act) without the prior written consent of the Company if such Underwriter’s use of or reference to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (as defined in Rule 433 under the Securities Act); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission ~~prior~~ pursuant to the ~~use~~ Rules and Regulations within the time periods required thereby. (n) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462 by 10:00 p.m. (Eastern time), on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462 Registration Statement or give irrevocable instructions for the payment of such ~~free writing prospectus~~ fee pursuant to Rule 111(b) under the Securities Act. (o) The Company has complied and ~~(ii) “issuer information,” as used~~ will comply with all applicable securities and other applicable laws, rules and regulations in ~~this Section 4(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from any issuer information with respect to~~ each foreign jurisdiction in which the Directed Shares are offered. (p) The Company ~~has given~~ will not take, and will cause its ~~prior written consent~~ affiliates (~~“Permitted Issuer Information”). Each Underwriter also~~within the meaning of Rule 144) not to take, ~~severally and not jointly~~directly or indirectly, ~~represents and agrees that such Underwriter has not used~~ any action which constitutes or ~~referred~~ is designed to ~~any “free writing prospectus” in connection with~~ cause or result in, or which could reasonably be expected to constitute, cause or result in, the ~~offering~~ stabilization or manipulation of the ~~Notes that includes~~ price of any ~~information other than Permitted Issuer Information if such “free writing prospectus” conflicts with information contained in (i)~~ security to facilitate the ~~Registration Statements, including~~ sale or resale of the Pricing Disclosure Package and the Prospectus, and not superseded or modified or (ii) any document filed or furnished under the Exchange Act that is incorporated by reference into the Registration Statements and not superseded or modifiedShares.

Appears in 1 contract

Samples: Underwriting Agreement (Aegean Marine Petroleum Network Inc.)

Covenants of the Company and the Underwriters. The Company covenants and agrees as follows: (a) The Company ~~covenants~~ will use its best efforts to cause the Registration Statement, if not effective at the time of execution of this Agreement, and ~~agrees with each~~ any amendments thereto, to become effective as promptly as possible. The Company shall prepare the Prospectus in a form reasonably approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second Business Day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by the Rules. (b) The Company shall promptly advise the Representatives in writing (A) when any post-effective amendment to the Registration Statement shall have become effective or any supplement to the Prospectus shall have been filed, (B) of any request by the Commission for any amendment of the ~~Underwriters~~ Registration Statement, any Preliminary Prospectus or the Prospectus or for any additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, the Prospectus or any Issuer Free Writing Prospectus or the institution or threatening of any proceeding for that purpose and (D) of the receipt by the Company of any notification with respect to the ~~Independent Underwriter that:~~suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company shall not file any amendment of the Registration Statement or distribute any amendment or supplement to the Pricing Disclosure Package or the Prospectus or any document incorporated by reference in the Registration Statement unless the Company has furnished the Representatives a copy for their review prior to filing and shall not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company shall use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (ic) If, at any time when a prospectus relating to the ~~Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act)~~ Shares is required to be delivered under the ~~Act~~Securities Act or the Rules, any event ~~shall have occurred~~ occurs as a result of which ~~either Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus) or~~ the Prospectus as then amended or supplemented ~~would, in the judgment of the Underwriters and the Independent Underwriter or the Company,~~ would include an any untrue statement of a material fact or omit to state any material fact ~~required to be stated therein or~~ necessary to make the statements ~~therein, in the case of the Prospectus and the Pricing Disclosure Package,~~ therein in the light of the circumstances ~~existing at the time of delivery of such Pricing Disclosure Package or Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a)~~ under ~~the Securities Act) to the purchaser,~~ which they were made not misleading, or if it shall be necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package, the~~ Prospectus ~~or either Registration Statement~~ to comply with the Securities Act or the Rules and Regulations, or to file under the Exchange Act so as to comply therewith any document incorporated by reference in either Registration Statement, the Pricing Disclosure Package or the Prospectus or in any amendment thereof or supplement theretoRules, the Company ~~will notify you~~ promptly ~~and~~ shall prepare and file with the ~~Commission~~ Commission, subject to the second sentence of Section 4(b), an ~~appropriate~~ amendment or supplement ~~(in form and substance satisfactory to you)~~ which ~~will~~ shall correct such statement or omission or an amendment which will effect such compliance and will use its best efforts to have any amendment to the Registration Statements declared effective as soon as possible. (ii) The Company will not, without the prior consent of the Representative, (A) make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, except for any Issuer Free Writing Prospectus set forth in Annex IV hereto and any electronic road show previously approved by the Representative, or (B) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect to the Offering or the Notes other than as set forth in Annex IV hereto. If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Underwriters or the Company, conflict with the information in the Registration Statements, the Preliminary Prospectus or the Prospectus as then amended or supplemented or would, in the judgment of the Underwriters or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representative promptly and, if requested by the Representative, prepare and furnish without charge to each Underwriter an appropriate amendment or supplement (in form and substance satisfactory to the Representative) that will correct such statement, omission or conflict or effect such compliance. (~~iii~~d) The Company ~~has complied~~ shall make generally available to its security holders and ~~will comply~~ to the Representatives as soon as practicable, but not later than 45 days after the end of the 12 month period beginning at the end of the fiscal quarter of the Company during which the Effective Date occurs (or 90 days if such 12 month period coincides with the ~~requirements~~ Company’s fiscal year), an earning statement (which need not be audited) of the Company, covering such 12 month period, which shall satisfy the provisions of Section 11(a) of the Securities Act or Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus158 of the Rules. (ive) The Company will promptly deliver to each of the Underwriters such number of copies of any Preliminary Prospectus, the Prospectus, the Registration Statements, all amendments of and supplements to such documents, if any, all documents incorporated by reference in the Registration Statements and Issuer Free Writing Prospectuses, if any, and Prospectus or any amendment thereof or supplement thereto, as you may shall reasonably request. Prior to 10:00 a.m., New York time, or if it is not possible to do so prior to such time, as soon thereafter as practicable, on the business day next succeeding the date of this Agreement and from time to time thereafter the Company will furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request. The Company will timely file the Prospectus cooperate with the ~~Commission as required by Rule 424(b) of the Rules~~ Representatives and ~~Regulations. (v) The Company will endeavor~~ their counsel in ~~good faith, in cooperation with you, at or prior to the date of the Prospectus,~~ endeavoring to qualify the ~~Notes~~ Shares for ~~offering~~ offer and sale in connection with the offering under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representatives may designate and to shall maintain such ~~qualification~~ qualifications in effect ~~for~~ so long as required for the distribution ~~thereof~~of the Shares; ~~except~~ provided, however, that ~~in no event shall~~ the Company shall not be ~~obligated~~ required in connection ~~therewith~~ therewith, as a condition thereof, to qualify as a foreign corporation or to execute a general consent to service of process ~~where it is not already so subject~~in any jurisdiction or subject itself to taxation as doing business in any jurisdiction. (vi) The Company will make generally available (within the meaning of Section 11(a) of the Securities Act) to its security holders and to the Underwriters and the Independent Underwriter as soon as practicable, but in any event not later than 45 days after the end of its fiscal quarter in which the first anniversary date of the date of the Prospectus occurs, an earnings statement of the Company and its subsidiaries (which need not be audited) complying with the provisions of Rule 158 of the Regulation covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statements. (vii) During the period from the date hereof until 45 calendar days after the Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or any Guarantor or warrants to purchase debt securities of the Company or any Guarantor substantially similar to the Notes (other than (A) the Notes, (B) the Guarantees and (C) commercial paper issued in the ordinary course of business), without the Representative’s prior written consent. (viii) Whether or not required by the Rules and Regulations, so long as any Notes are outstanding and so long as the Indenture so requires, the Company (A) will furnish to you at your reasonable request copies of all reports or other communications (financial or other) furnished to security holders and (B) will deliver to you (1) as soon as they are available, copies of any and all reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed and (2) on or before July 12, 2008, such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its security holders generally or to the Commission), provided, in the case of each of clauses (A) and (B) above, a copy of such information is not already filed with the Commission pursuant to EXXXX. (ix) The Company will apply the proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Pricing Disclosure Package. (x) The Company will use its best efforts to do or perform, or cause to be done or performed, all things required or necessary to be done and performed under this Agreement by the Company and the Guarantors prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Notes. (xi) The Company will use its best efforts in cooperation with the Underwriters to permit the Notes to be eligible for clearance and settlement through the facilities of The Depository Trust Company. (xii) The Company will take all reasonable action necessary to enable Standard & Poor’s Corporation and Mxxxx’x Investors Service, Inc. to provide their respective credit ratings on the Company’s outstanding senior subordinated debt, including for this purpose, the issuance of the Notes. (xiii) The Company has not and will not (and has not permitted its affiliates to, and will cause its controlled affiliates not to) take, directly or indirectly, any action which is designed to or which constitutes or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes and neither the Company nor any of its affiliated purchasers (as defined in Rule 100 of Regulation M under the Exchange Act) will take any action prohibited by Regulation M under the Exchange Act. (xiv) If, at any time when a prospectus relating to the Notes (or, in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required to be delivered under the Act, a stop order suspending the effectiveness of either Registration Statement has been issued or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or a proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the Offering has been initiated or, to the Company’s knowledge, threatened by the Commission, the Company will notify you promptly and use its best efforts to prevent the issuance of any such order suspending the effectiveness of either Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus and, if any such order is issued, will obtain as soon as possible the withdrawal thereof. (xvf) The Company, during the period when ~~a prospectus (or, in lieu thereof,~~ the ~~notice referred to in Rule 173(a) under the Securities Act)~~ Prospectus is required to be delivered under the Securities Act and the Rules or the Exchange Act, will file all reports and other documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the ~~rules and~~ regulations promulgated thereunder. (bg) ~~Each Underwriter~~Without the prior written consent of Deutsche Bank Securities Inc. and J.X. Xxxxxx Securities Inc., for a period of 90 days after the date of this Agreement, the Company and the individuals listed on Schedule IV hereto shall not issue, sell or register with the Commission (other than on Form S-8 or on any successor form), or otherwise dispose of, directly or indirectly, any equity securities of the Company (or any securities convertible into, exercisable for or exchangeable for equity securities of the Company), except for (A) those shares of Common Stock set forth in the Lockup Agreement, (B) the issuance of shares pursuant to the Company’s existing stock option plan or bonus plan as described in the Registration Statement and the Prospectus, and (C) the issuance of shares of the Company’s Common Stock upon the exercise or conversion of securities of the Company outstanding on the date hereof and disclosed in the Registration Statement or Prospectus. In the event that during this period, (A) any shares are issued pursuant to the Company’s existing stock option plan or bonus plan that are exercisable during such 90-day period or (B) any registration is effected on Form S-8 or on any successor form relating to shares that are exercisable during such 90-period, the Company shall use its best efforts to obtain the written agreement of such grantee or purchaser or holder of such registered securities that, for a period of 90 days after the date of this Agreement, such person will not, without the prior written consent of Deutsche Bank Securities Inc. and J.X. Xxxxxx Securities Inc., offer for sale, sell, distribute, grant any option for the sale of, or otherwise dispose of, directly or indirectly, or exercise any registration rights with respect to, any shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for, any shares of Common Stock) owned by such person. (h) During a period of five years from the effective date of the Registration Statement to the extent not otherwise available on the Commission’s website (currently available at hxxx://xxx.xxx.xxx), to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to you as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which the Shares or any class of securities of the Company is listed; (i) On or before completion of this offering, the Company shall make all filings required under applicable securities laws and by each of the New York Stock Exchange (including any required registration under the Exchange Act) and the Toronto Stock Exchange in connection with the transactions contemplated by this Agreement and the Shares; (j) Prior to the Closing Date, the Company will issue no press release or other communications directly or indirectly and hold no press conference with respect to the Company, the condition, financial or otherwise, or the earnings, business affairs or business prospects of any of them, or the offering of the Shares without the prior written consent of Deutsche Bank Securities Inc. and J.X. Xxxxxx Securities Inc. unless in the judgment of the Company and its counsel, and after notification to the Representatives, such press release or communication is required by law; (k) The Company shall (A) furnish to the Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement, each Preliminary Prospectus, the Pricing Prospectus and the Prospectus (including all exhibits thereto and amendments thereof) and all amendments thereof (i) prior to 10:00 a.m. New York City Time on the Business Day next succeeding date of this Agreement, (ii) so long as delivery of a prospectus by an underwriter or dealer may be required by the Securities Act or the Rules in connection with the sale and issuance of the Shares (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) and (B) if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a prospectus supplement which will correct such statement or omission or effect such compliance. If applicable, the copies of the Registration Statement, each Preliminary Prospectus, the Pricing Prospectus and Prospectus and each amendment and supplement thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EXXXX, except to the extent permitted by Regulation S-T; (l) The Company will apply the net proceeds from the offering of the Shares in the manner set forth under “Use of Proceeds” in the Prospectus; (m) The Company will (i) not without the prior consent of Deutsche Bank Securities Inc. and J.X. Xxxxxx Securities Inc., make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, provided that the prior written consent of Deutsche Bank Securities Inc. and J.X. Xxxxxx Securities Inc. shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule II hereto; (any such free writing prospectus the use of which has been consented to by the Company and Deutsche Bank Securities Inc. and J.X. Xxxxxx Securities Inc. is referred to herein as a “Permitted Free Writing Prospectus”); (ii) comply with the requirements of Rules 163, 164 and 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or record keeping and legending; (iii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus; and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file; (n) The Company will, if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, (i) give prompt notice thereof to the Representatives (ii) and, if requested by the Representatives, prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters through the Representatives expressly for use therein; (o) If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Shares remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Shares, in a form reasonably satisfactory to any Representative. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Shares, in a form reasonably satisfactory to the Representatives, and will use commercially reasonable efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other commercially reasonable action necessary or appropriate to permit the public offering and sale of the Shares to continue as contemplated in the expired registration statement. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. (p) The Company will pay the required filing fees to the Commission relating to the Shares within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act. The Underwriters, severally and not jointly, ~~covenants~~ covenant and ~~agrees with the Company that such~~ agree as follows: (q) Each Underwriter will not ~~use or refer to~~ include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule ~~405 under the Securities Act~~405) used or referred to by such Underwriter without the prior written consent of the Company if such Underwriter’s use of or reference to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (as defined in Rule 433 under the Securities Act); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 4(b), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from any issuer information with respect to which the Company has given its prior written consent (“Permitted Issuer Information”). Each Underwriter also, severally and not jointly, represents and agrees that such Underwriter has not used or referred to any “free writing prospectus” in connection with the offering of the Notes that includes any information other than Permitted Issuer Information if such “free writing prospectus” conflicts with information contained in (i) the Registration Statements, including the Pricing Disclosure Package and the Prospectus, and not superseded or modified or (ii) any document filed or furnished under the Exchange Act that is incorporated by reference into the Registration Statements and not superseded or modifiedCompany.

Appears in 1 contract

Samples: Underwriting Agreement (Coeur D Alene Mines Corp)

Common use of Covenants of the Company and the Underwriters Clause in Contracts