Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 6 contracts

Samples: Underwriting Agreement (Duke Energy CORP), Underwriting Agreement (Duke Energy CORP), Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. The Corporation covenants and agrees with the ~~several Underwriters~~ Purchaser that: (1) subject to receipt of the Purchase Price therefor, the Purchased Shares will at the Time of Closing be duly and validly allotted and issued to the Purchaser or its assignee as fully-paid and non-assessable shares; (2) the proceeds to the Corporation from the sale and purchase of the Purchased Shares will be applied by the Corporation for working capital purposes and for the repayment of certain liabilities other than the loans made by the ECF Lenders; (3) the Corporation will promptly inform between date hereof until the Time of Closing the Purchaser in writing of the full particulars of: (a) ~~The~~ any Material Change (actual, anticipated, contemplated or threatened, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of the Corporation, (b) any change in any Material Fact contained in the Filed Securities Documents, (including for greater certainty, any information incorporated or deemed to be incorporated by reference therein); (4) the Corporation will ~~cause any Preliminary Prospectus and~~ list the ~~Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of~~ Purchased Shares on the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain Toronto Stock Exchange as soon as possible ~~its lifting, if issued.~~following the Closing Time; (b5) ~~If at~~ the Corporation will indemnify and save harmless the Purchaser against all losses, claims, damages, liabilities, costs or expenses (other than lost profits) caused or incurred, directly or indirectly, by reason of any ~~time when a prospectus relating to the Notes (or the notice referred to in Rule 173(a)~~ material breach of any covenant of the ~~1933 Act Regulations~~Corporation contained in this Agreement or any inaccuracy or misrepresentation in any representation or warranty set forth in Section 3.1; (6) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation ~~promptly will prepare~~ will, on or before the Time of Closing, enter into the Supplemental Indenture and ~~file with~~ the ~~Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.~~Registration Rights Agreements; (c7) ~~The Corporation, during~~ the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to ~~prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives~~ pay on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include demand all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the ~~Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes,~~ Purchaser including, without limitation, ~~expenses associated with~~ the ~~production of road show slides and graphics,~~ reasonable fees and out of pocket expenses of ~~any consultants engaged~~ one set of Canadian and U.S. counsel to the Purchaser with respect thereto (i) in connection with the ~~road show presentations~~ preparation, execution and delivery of this Agreement and the other documents contemplated hereunder and (ii) in connection with the ~~prior approval~~ enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement and the other documents contemplated hereunder, whether or not any of such transactions is consummated; (8) upon a written request from the Purchaser or a transferee thereof that is also a potential "United States shareholder" (as that term is defined in Section 951(b) of the Internal Revenue Code of 1986, as amended (the "Code")) of the Corporation, ~~travel and lodging expenses~~ the Corporation will use reasonable best efforts to determine whether it is properly treated as a "controlled foreign corporation" ("CFC") within the meaning of Section 957 of the ~~Underwriters~~ Code and ~~officers~~ to inform such person of its determination. The Purchaser shall, on an annual basis, provide to the Corporation information regarding its ownership of Common Shares and generally cooperate with the Corporation so that the Corporation can make a determination as to its CFC status. If the Corporation determines that it is properly treated as a CFC in any fiscal year, (i) the Corporation shall promptly, but in any case no later than 30 days after the end of the applicable fiscal year, notify the requesting holder described in the first sentence of this Section 4.1(8) of the Corporation's CFC status and (ii) the Corporation shall, no later than March 1 of the following fiscal year, provide the such holder holding Common Shares on the last day of such fiscal year on which the Corporation was a CFC a written report of the amount of income per Common Share required to be included in the gross income of a "United States shareholder" pursuant to Section 951(a) of the Code and shall generally cooperate with any reasonable request of such holder of Common Shares to facilitate such holder's U.S. federal income tax reporting requirements relating to the Corporation; (9) the Corporation will maintain its status as a reporting issuer under the Provincial Securities Laws and as a registrant under the United States Securities Exchange Act of 1934, as amended; and (10) the Corporation shall not at any time issue Common Shares or any securities convertible into, exchangeable for, or otherwise carrying the right to acquire Common Shares (a "Voting Security") without contemporaneously granting to the Purchaser (provided that, at the relevant time, the Purchaser holds not less than 3% of the outstanding Common Shares on an undiluted basis) the irrevocable right and option, exercisable on written notice not later than five days before the closing thereof, to acquire that number of securities being issued that would allow the Purchaser to maintain its proportionate interest as it existed before the issuance, in the total number of voting rights attached to all Voting Securities outstanding after the issue. Any right or option granted under this Section 4.1(10) shall be on the same terms and for the same consideration as the Voting Securities being issued, or, if such securities are to be issued for non-cash consideration, for a price in cash representing the fair market value of such non-cash consideration on a per security basis determined by the Corporation in good faith and acting reasonably. The Corporation shall give the Purchaser reasonable notice of any proposed issuance as soon as practicable and in any event not less than 10 days before the scheduled closing thereof, with reasonable particulars thereof, and shall forthwith advise the Purchaser of any anticipated or actual delays and of any anticipated or actual changes in terms. The Purchaser's right to exercise such right and option shall be subject to the Corporation obtaining any required approvals from any regulatory authority (including any stock exchange on which the Voting Securities are listed) and, if required by law, obtaining shareholder approval in the manner required by law or imposed by regulatory authority (including any stock exchange) as a condition to granting approval, which approvals the Corporation agrees to use its reasonable best efforts to obtain. This subsection shall not apply to issuances of Voting Securities: (i) under the exceptions set out in Section 3.1(d); (ii) as contemplated by Section 3.3(7) hereof; (iii) under any future stock incentive plan, stock option plan, share unit plan of the Corporation ~~and any such consultants, and the cost~~ or other issuances of ~~any aircraft chartered~~ securities to directors or officers in connection with the ~~road show~~performance of their duties; ~~provided, however,~~ or (iv) under an amalgamation to which the ~~Underwriters shall reimburse~~ Corporation is a ~~portion of the costs and expenses referred to in this clause (x)~~party.

Appears in 5 contracts

Samples: Share Purchase Agreement (Sr Telecom Inc), Share Purchase Agreement (Sr Telecom Inc), Share Purchase Agreement (Sr Telecom Inc)

Covenants of the Corporation. The Corporation covenants and ~~agrees with the several Underwriters that~~agrees: (a) ~~The~~ to comply with all covenants of the Corporation ~~will cause any Preliminary Prospectus~~ set forth in the Transaction Documents in all material respects and to duly, punctually and faithfully perform all the ~~Prospectus~~ obligations to be ~~filed pursuant to~~performed by it under the Transaction Documents; (b) as soon as reasonably possible, and in ~~compliance with~~any event by the Closing Date, ~~Rule 424(b)~~ to take any and all commercially reasonable steps to enable the Subscribed Securities to be offered for sale and sold on a private placement basis to the Investor by way of the ~~1933 Act Regulations~~“accredited investor” exemption under Applicable Securities Laws applicable in Ontario as contemplated hereby; (c) to use the proceeds from the issuance and sale of the Subscribed Securities to fund a portion of the aggregate Acquisition Price; (d) prior to the Closing Time, to provide prompt notice to the Investor of the lapsing or (with the consent of the Takeover Panel) withdrawal of the Acquisition; (e) to use its commercially reasonable efforts to obtain, prior to the Closing Time, all necessary approvals of the Exchange for the issuance of the Subscribed Securities and for the issuance and listing of the Placement Underlying Shares, subject only to the Standard Listing Conditions, and ~~advise the Underwriters promptly~~ that it will comply with all requirements of the Exchange in connection therewith, including filing of all necessary documentation in accordance with the requirements of the Exchange; (f) to use its commercially reasonable efforts to expeditiously pursue the satisfaction of all conditions to the completion of the Acquisition (including, for greater certainty, the Escrow Release Conditions) in its control; (g) to cause the issuance of the Placement Underlying Shares to holders of the Subscribed Securities if and when such issuance is to occur in accordance with and subject to the terms of the Subscription Receipt Agreement; (h) not to, without the prior approval of holders of at least 50% of the Cornerstone Private Placement Subscription Receipts, (i) materially amend any of the terms and conditions of the Acquisition as set out in the Rule 2.7 Announcement or (ii) waive any material provision thereof, in whole or in part, where such amendment or waiver would be materially adverse to the interest of the holders of the Cornerstone Private Placement Subscription Receipts, provided that any amendment or ~~supplement~~ waiver (including the treatment of a condition as having been satisfied) that is (A) required pursuant to the ~~Registration Statement, any Preliminary Prospectus~~ Takeover Code or by a court of competent jurisdiction or the ~~Prospectus and~~ Takeover Panel (including any refusal by the Takeover Panel to allow the invocation of a condition) or (B) in the event the Acquisition is implemented by way of a Takeover Offer, reducing the acceptance condition to not less than 75% of the ~~institution by~~ then issued ordinary share capital of the ~~Commission~~ Target shall not be regarded as being materiality adverse to the interest of the holders of the Cornerstone Private Placement Subscription Receipts; (i) not to, without the prior written consent of the Investor, amend any ~~stop order proceedings~~ of the terms and conditions of the Subscription Receipt Agreement, including with regards to the Escrow Release Condition; (j) to comply with, and to procure that its Subsidiaries comply with, the rules and principles of the Takeover Code and/or any rulings of the Takeover Panel in respect of the ~~Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.~~Acquisition; and (bk) ~~If at any time when a prospectus relating~~ to deliver to the Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material factInvestor, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without chargereceipt thereof, copies of each notice or statement delivered to the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation ~~will arrange or cooperate in arrangements for the qualification of the Notes for sale~~ under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the NotesSubscription Receipt Agreement, including, without limitation, ~~expenses associated with the production~~ all statements of ~~road show slides and graphics, fees and expenses of any consultants engaged~~ account in ~~connection with the road show presentations with the prior approval~~ respect of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Escrow Account.

Appears in 4 contracts

Samples: Subscription Agreement, Subscription Agreement, Subscription Agreement

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly ~~of the filing~~ of any amendment or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will not, during the period of days from the date hereof, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any Notes, any security convertible into or exchangeable for the Notes or any debt security substantially similar to the Notes (except for the Notes issued pursuant to this Agreement), without your prior written consent. (h) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and ~~any~~ the Blue Sky Survey, (ii~~) the preparation and printing of certificates for the Notes, (iii~~) the issuance and delivery of the Notes as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $~~5,000~~7,500, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and Prospectus and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the Notes, (~~vii~~vi) any fees and expenses in connection with ~~the~~ any listing of the Notes on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc., and (ixviii) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)depository.

Appears in 3 contracts

Samples: Underwriting Agreement (Duke Capital Financing Trust Vi), Underwriting Agreement (Duke Capital Financing Trust Vi), Underwriting Agreement (Duke Capital Financing Trust Vi)

Covenants of the Corporation. 8.1 The Corporation covenants and agrees with the ~~several Underwriters~~ Agent that: ~~(a) The~~ 8.1.1 the Corporation ~~will cause any Preliminary Prospectus and~~ will, during the period of distribution of the Units to the public, advise the Agent, promptly after receiving notice thereof, of the time when the Prospectus ~~to be~~ Supplement, a Prospectus Amendment or any Supplemental Material has been filed ~~pursuant to,~~ with and ~~in compliance with, Rule 424(b)~~ receipts therefor have been obtained from each of the ~~1933 Act Regulations~~Securities Authorities and will provide evidence satisfactory to the Agent thereof (when applicable); 8.1.2 the Corporation will, ~~and~~ during the period of distribution of the Units to the public, advise the ~~Underwriters~~ Agent, promptly after receiving notice or obtaining knowledge thereof, of: (i) the issuance by any Securities Authority of any order suspending or preventing the use of the ~~filing~~ Base Shelf Prospectus, the Prospectus Supplement or any Prospectus Amendment; (ii) the suspension by any Securities Authority of the qualification of the Units for offer and sale to the public in any ~~amendment~~ of the Qualifying Jurisdictions; (iii) any proceeding (including, without limitation, any threatened or contemplated proceeding) for any such purposes; or (iv) any request made by any Securities Authority to amend or supplement to the ~~Registration Statement, any Preliminary~~ Base Shelf Prospectus or the Prospectus ~~and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement,~~ Supplement or for additional information; and will use its best efforts to prevent the issuance of any such ~~stop~~ order ~~and~~ and, if any such order is issued, to obtain the withdrawal thereof as ~~soon~~ quickly as ~~possible its lifting~~possible; 8.1.3 the Corporation will apply the net proceeds from the sale of the Units contemplated hereby as described in the Prospectus Supplement; 8.1.4 the Corporation will fulfill all legal requirements to permit the issuance, ~~if issued.~~offering and sale of the Units as contemplated in this Agreement; ~~(b) If at any time when a prospectus~~ 8.1.5 the Corporation will, forthwith after the Closing Date, file such documents as may be required under the Securities Laws relating to the ~~Notes (or the notice referred to in Rule 173(a)~~ offering of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, Units; 8.1.6 the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporationwill, during the period ~~when a prospectus relating~~ of distribution of the Units to the ~~Notes is required~~ public, execute or use all reasonable commercial efforts to procure the execution of all documents and use all reasonable commercial efforts to take or cause to be ~~delivered under~~ taken all such steps as may be reasonably necessary or desirable to fulfill, to the ~~1933 Act~~satisfaction of counsel for the Agent, ~~will timely file~~ acting reasonably, all ~~documents required~~ legal requirements to ~~be filed~~ enable the Agent to offer the Units for sale to the public in all of the Qualifying Jurisdictions in compliance with the ~~Commission pursuant~~ Securities Laws; and 8.1.7 the Corporation will not, directly or indirectly, authorize, issue, sell or grant, or negotiate or enter into any agreement to ~~Section 13~~ issue, sell or 14 grant, or agree to announce any intention to issue, sell or grant, any equity or quasi-equity securities for a period of 90 days after the ~~1934 Act.~~ Closing Date (dthe “Restricted Period”) ~~Without~~ without the prior written consent of the ~~Underwriters~~Agent, ~~the Corporation has~~ such consent not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be ~~filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed~~ unreasonably withheld or delayed, except in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including conjunction with: (i) the ~~printing~~ grant or exercise of stock options and ~~filing~~ other similar issuances pursuant to the current share incentive plan of the ~~Registration Statement~~ Corporation and ~~the printing of this Agreement and any Blue Sky Survey,~~ other share compensation arrangements; (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the currently outstanding warrants or other currently outstanding convertible securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any ~~such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred~~ convertible securities issued pursuant to in this ~~clause (x).~~Agreement;

Appears in 3 contracts

Samples: Agency Agreement, Agency Agreement, Agency Agreement

Covenants of the Corporation. ~~The Corporation covenants and agrees with~~ So long as the ~~several Underwriters that: (a) The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b)~~ principal amount of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees thatNote remains outstanding, without the ~~prior~~ consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request.TIG: (i) The Corporation will ~~arrange~~ not alter, amend or ~~cooperate~~ modify in ~~arrangements for~~ any respect the ~~qualification~~ rights, preferences or privileges of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subjectNote. (jii) The Corporation will ~~pay all expenses incident to~~ not incur any indebtedness for consideration other than cash or incur in excess of an aggregate of $5,000,000 of additional indebtedness outstanding at any time beyond indebtedness shown or reflected on the ~~performance of its obligations under this Agreement including (i)~~ Corporation's balance sheet at June 30, 1998 and the ~~printing and filing~~ principal amount of the ~~Registration Statement and~~ Note. (For the ~~printing~~ purposes hereof, "indebtedness" shall not include accounts payable to trade creditors created or assumed in the ordinary course of ~~this Agreement and any Blue Sky Survey, (ii)~~ business in connection with obtaining materials or services or amounts owed to employees of the ~~preparation and printing~~ Corporation in the ordinary course of ~~certificates for the Notes,~~ business.) (iii) Except as set forth in the ~~issuance~~ Corporation's Annual Report on Form 10-K for the fiscal year ended June 30, 1998 and ~~delivery~~ the Notice of Meeting and Proxy Statement relating to the ~~Notes as specified herein~~1998 Annual Meeting of Stockholders, the Corporation is not currently engaged in and shall not enter into any transaction with a related party, whether or not reportable pursuant to Regulation S-K promulgated by the Securities and Exchange Commission; provided that, TIG shall not unreasonably withhold or delay its consent to any such transaction. (iv) ~~the fees and disbursements~~ The Corporation shall not sell, transfer or otherwise dispose of ~~counsel for the Underwriters in connection with the qualification~~ intellectual property of the ~~Notes under~~ Corporation for consideration received in excess of $500,000, singly or in the ~~securities laws of~~ aggregate; provided that, TIG shall not unreasonably withhold or delay its consent to any ~~jurisdiction~~ such disposition. (For the purposes hereof, "intellectual property" means rights in ~~accordance with~~ any patent, copyright, trademark, trade dress and trade name, including any such rights related to applications in the ~~provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey~~online, ~~such fees not to exceed $5,000,~~ interactive or multimedia environments.) (v) ~~the printing and delivery to the Underwriters~~The Corporation shall not sell, ~~in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto,~~ transfer or otherwise dispose of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval assets of the Corporation, ~~travel~~ other than in the ordinary course of business, if such disposition, together with any and ~~lodging expenses~~ all other such dispositions after the Closing, constitute more than $2,000,000 of the ~~Underwriters and officers~~ Corporation's assets (i) as shown or reflected in the Corporation's most recent balance sheet, or (ii) valued at fair market value at the time of disposition, whichever is greater. (vi) The Corporation will not issue options to purchase stock of the Corporation or restricted stock to directors, officers, or employees of the Corporation in consideration of services rendered, except for grants or awards pursuant to the 1994 Stock Option Plan as proposed to be amended at the 1998 Annual Meeting of Shareholders. The Corporation will provide a copy to TIG of any proposed amendments to the 1994 Plan prior to disclosure of such amendments to the Corporation's shareholders. (vii) The Corporation will not make any distribution of stock or stock rights of the Corporation to shareholders, if made at the election of any of the shareholders of the Corporation and such distribution would result in taxable income to TIG pursuant to Section 305 of the Internal Revenue Code, as amended. (viii) The Corporation will not redeem or repurchase any of the outstanding Common Stock of the Corporation, except as provided in the Note and the Stockholders Agreement. (ix) The Corporation will not merge or consolidate with, or acquire the stock or assets of, any other entity, or otherwise effect a reorganization of the Corporation, in which (in any such ~~consultants, and~~ transaction) the ~~cost~~ outstanding Common Stock of ~~any aircraft chartered in connection with~~ the ~~road show~~Corporation is issued; ~~provided, however~~provided that, the ~~Underwriters~~ foregoing shall ~~reimburse a portion~~ not apply to any merger, consolidation or reorganization among any of the ~~costs~~ Corporation's subsidiaries or between the Corporation and ~~expenses referred~~ any subsidiary, unless such consent is required pursuant to in another subparagraph of this ~~clause~~ Section 5. (x)) The Corporation will not expand the size of the Board of Directors to more than eight directors.

Appears in 2 contracts

Samples: Note Purchase Agreement (Singer Brad C), Note Purchase Agreement (Dualstar Technologies Corp)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly of the filing of any amendment (and effectiveness thereof) or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the ~~Prospectus~~ Prospectus, of the filing of any Rule 462(b) registration statement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the ~~preparation and printing of certificates for the Notes, (iii) the~~ issuance and delivery of the Notes as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the Notes, (~~vii~~vi) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc., (ixviii) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (xix) the costs and expenses of the Corporation relating to investor presentations on any “"road show” " undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of ~~the Underwriters~~ and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (xix).

Appears in 2 contracts

Samples: Underwriting Agreement (Duke Energy Capital Trust V), Underwriting Agreement (Duke Energy Capital Trust V)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly ~~of the filing~~ of any amendment or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will not, during the period beginning from the date hereof and continuing to and including the date fifteen days after the date hereof, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any Notes, any security convertible into or exchangeable for the Notes or any debt security substantially similar to the Notes (except for the Notes issued pursuant to this Agreement), without your prior written consent. (h) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and ~~any~~ the Blue Sky Survey, (ii~~) the preparation and printing of certificates for the Notes, (iii~~) the issuance and delivery of the Notes as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the Notes, (~~vii~~vi) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc. and (ixviii) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)depository.

Appears in 2 contracts

Samples: Underwriting Agreement (Duke Capital Financing Trust Iii), Underwriting Agreement (Duke Capital Financing Trust Iii)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly of the filing of any amendment (and effectiveness thereof) or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the ~~Prospectus~~ Prospectus, of the filing of any Rule 462(b) registration statement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the ~~preparation and printing of certificates for the Notes, (iii) the~~ issuance and delivery of the Notes as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $~~5,000~~7,500, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the Notes, (~~vii~~vi) any fees and expenses in connection with ~~the~~ any listing of the Notes on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc., (ixviii) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (xix) the costs and expenses of the Corporation relating to investor presentations on any “"road show” " undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of ~~the Underwriters~~ and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (xix).

Appears in 2 contracts

Samples: Underwriting Agreement (Duke Capital Financing Trust Vi), Underwriting Agreement (Duke Capital Financing Trust Vi)

Covenants of the Corporation. The Corporation covenants ~~and agrees~~ with the ~~several Underwriters that~~Agents that the Corporation shall during the period from the date of this Agreement until the Closing Date: (a) ~~The Corporation will cause any Preliminary Prospectus and~~ promptly provide to the ~~Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing~~ Agents copies of any ~~amendment~~ filings made by the Corporation or ~~supplement~~ the Subsidiary of information relating to the ~~Registration Statement~~Offering with any Securities Commissions or any regulatory body in Canada, United States or any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.other jurisdiction; (b) ~~If at~~ promptly provide to the Agents drafts of any ~~time when a prospectus~~ press releases and other public documents of the Corporation relating to the ~~Notes (~~Offering for review by the Agents prior to issuance, and give the Agents a reasonable opportunity to provide comments on any such press release or other public document, subject to the ~~notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered~~ Corporation’s timely disclosure obligations under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.applicable Securities Laws; (c) ~~The Corporation, during~~ use the ~~period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ net proceeds of the ~~1934 Act.~~Offering to complete construction of the North Las Vegas cultivation facility, to fund strategic investment opportunities, as well as for general working capital purposes; (d) ~~Without~~ until the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus date that is ~~not required~~ three years following the Closing Date, use its commercially reasonable efforts to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwritersremain, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of ensure each Subsidiary remains, a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale corporation validly subsisting under the laws under which it is currently subsisting, licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the character of its properties owned or leased or the nature of the activities conducted by it make such ~~jurisdictions as you designate~~ licensing, registration or qualification necessary and ~~will continue~~ shall carry on its business in the ordinary course and in compliance in all material respects with all applicable Laws of each such ~~qualifications in effect so long as required for the distribution; provided~~jurisdiction, ~~however,~~ provided that the Corporation shall not be required to ~~qualify~~ comply with the terms of this Section 8 following the completion of a merger, amalgamation, arrangement, business combination or take-over bid pursuant to which the Corporation ceases to be a "distributing corporation" (within the meaning of the Business Corporations Act (Ontario); (e) other than in the event of an acquisition of all of the issued and outstanding Common Shares by way of take-over bid merger, amalgamation, plan of arrangement or similar transaction, until the date that is three years following the Closing Date, use commercially reasonable efforts to maintain its status as a ~~foreign corporation or to file any general consents to service of process~~ "reporting issuer" under the ~~laws~~ Securities Laws of a jurisdiction of Canada, not in default of any ~~state where~~ requirement of such Securities Laws; (f) other than in the event of an acquisition of all of the issued and outstanding Common Shares by way of take-over bid merger, amalgamation, plan of arrangement or similar transaction, until the date that is three years following the date of listing of Common Shares on the CSE, use commercially reasonable efforts to maintain the listing of the Common Shares on the CSE or another recognized stock exchange or quotation system in Canada; (g) duly execute and deliver the Transaction Documents at the Closing Time and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation; (h) fulfil or cause to be fulfilled, at or prior to the Closing Time each of the conditions required to be fulfilled by it ~~is not now so subject.~~set out in Section 7 hereof; (i) ensure that at the Closing Time the Convertible Debentures and the Broker Warrants are duly and validly created, authorized and issued and, with respect to the Convertible Debentures, shall have attributes corresponding in all material respects to the description set forth in the Debenture Indenture and this Agreement, respectively; (j) ~~The~~ ensure that, at the Closing Time, the Common Shares and Warrants issuable upon exercise of the Convertible Debentures and the Broker Warrants, respectively, have been duly authorized and validly allotted for issuance by the Corporation and shall, upon issuance in accordance with the terms of the Convertible Debentures and the Broker Warrant Certificate, as applicable, be outstanding, and in respect of the Common Shares, as fully paid securities of the Corporation; (k) ensure that, at the Closing Time, the Warrant Shares have been duly authorized and validly allotted and reserved for issuance by the Corporation and shall, upon issuance in accordance with terms of the Warrant Indenture, be outstanding as fully paid and non- assessable shares in the capital of the Corporation; (l) ensure that, on or before the Closing Date, all necessary regulatory approvals have been obtained; (m) for the period of 90 days following the Closing Date, the Corporation will ~~pay all expenses incident~~ not, directly or indirectly, offer, issue, sell, grant, secure, pledge, or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to acquire Common Shares or other equity securities of the ~~performance~~ Corporation, without the prior written consent of ~~its obligations under this Agreement including~~ the Agents (such consent not to be unreasonably withheld or delayed), other than in conjunction with: (i) the ~~printing~~ grant or exercise of stock options and ~~filing~~ other similar issuances pursuant to the share incentive plan of the Corporation and other share compensation arrangements; (ii) outstanding warrants; (iii) obligations in respect of existing agreements; and (iv) the issuance of securities in connection with property or share acquisitions in the normal course of business, provided that any Common Shares or securities convertible, exercisable or exchangeable for Common Shares issued in such financings shall not be freely tradable in Canada prior to the Convertible Debentures having been exercised and the Common Shares and Warrants issued upon such exercise being freely tradable in Canada (subject to restrictions on control block distributions); (n) use its best efforts to cause each of the Locked-Up Persons to enter into lock-up agreements in a form satisfactory to the Corporation and the Agent, in both cases acting reasonably, which shall be negotiated in good faith and contain customary provisions, pursuant to which each such person agrees to not, directly or indirectly, offer, sell, contract to sell, grant or sell any option to purchase, purchase any option or contract to sell, hypothecate, pledge, transfer, assign, lend, swap, or enter into any other agreement to transfer the economic consequences of, or otherwise dispose of or deal with (or agree to or publicly announce any intention to do any of the foregoing) whether through the facilities of a stock exchange, by private placement or otherwise, any Common Shares or other securities of the Corporation convertible into, exchangeable for or exercisable to acquire, Common Shares, directly or indirectly, unless (i) such person first obtain the prior consent of the Agents, such consent not to be unreasonably withheld, or (ii) there occurs a take-over bid or similar transaction involving a Change of Control of the Corporation, until the date that is six (6) months from the date of listing of Common Shares on the CSE; (o) as promptly as practicable after becoming aware of such event, notify the Agent of the issuance by the SEC of any stop order or other suspension of effectiveness of the Registration Statement at the earliest possible time and take all lawful action to effect the ~~printing~~ withdrawal, rescission or removal of ~~this Agreement~~ such stop order or other suspension; (p) not issue any additional equity or quasi-equity securities for a period of ninety (90) days from the Closing Date without prior written consent of the Agent except in conjunction with: (i) the grant or exercise of stock options and ~~any Blue Sky Survey,~~ other similar and issuance pursuant to the share incentive plan of the Corporation and other share compensation arrangements; (ii) ~~the preparation and printing of certificates for the Notes,~~ outstanding warrants; (iii) ~~the issuance~~ obligations in respect of existing agreements, such consent not to be unreasonably withheld and ~~delivery of the Notes as specified herein,~~ (iv) the ~~fees and disbursements~~ issuance of ~~counsel for the Underwriters~~ securities in connection with property or share acquisitions in the ~~qualification~~ normal course of ~~the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey~~business, such ~~fees~~ consent not to ~~exceed $5,000~~be unreasonably withheld, delayed or conditioned; and (vq) ~~the printing~~ promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, such further acts, documents and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements things for the ~~Notes with DTC or any successor depositary and (x) the costs and expenses~~ purpose of ~~the Corporation relating~~ giving effect to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, this Agreement and the ~~cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)~~transactions contemplated herein.

Appears in 2 contracts

Samples: Agency Agreement (CLS Holdings USA, Inc.), Agency Agreement

Covenants of the Corporation. The Corporation covenants and agrees ~~with the several Underwriters that:~~to (and will cause each of its Subsidiaries, as applicable, to): (a) ~~The~~ perform the obligations required to be performed by the Corporation ~~will cause any Preliminary Prospectus~~ under the Pre-Arrangement Reorganization and the ~~Prospectus~~ Plan of Arrangement and do all such other acts and things as may be necessary or desirable and are within its power and control in order to ~~be filed pursuant to,~~ carry out and ~~in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement~~ give effect to the ~~Registration Statement~~Pre-Arrangement Reorganization, the Arrangement and any ~~Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent~~ transactions necessary for the issuance of ~~any~~ the Tax Opinions, including using all commercially reasonable efforts to obtain: (i) the approval of Corporation Shareholders required for the implementation of the Arrangement; (ii) the Interim Order and the Final Order; (iii) such ~~stop order~~ other consents, orders, rulings or approvals and assurances as are necessary or desirable for the implementation of the Arrangement, including those referred to ~~obtain as soon as possible its lifting, if issued.~~in Section 5.1; and (iv) satisfaction of the other conditions precedent referred to in Article 5; (b) ~~If at~~ not, on or before the Effective Date, perform any ~~time when a prospectus relating to~~ act or enter into any transaction that could: (i) interfere or could be inconsistent with the ~~Notes (or the notice referred to in Rule 173(a)~~ completion of the ~~1933 Act Regulations~~Pre-Arrangement Reorganization, the Arrangement or any transaction contemplated by this Agreement; or (ii) cause the Corporation, or any Subsidiary of the Corporation that is ~~required~~ a corporation and that will participate in the Pre-Arrangement Reorganization, to cease to be ~~delivered under the 1933 Act any event occurs~~ or fail to qualify as a ~~result of which~~ Specified Corporation on or before the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.Effective Date; (c) ~~The Corporation~~on or before the Effective Date, ~~during~~ assist and cooperate in the ~~period when a prospectus relating~~ preparation and filing with all applicable securities commissions or similar securities regulatory authorities in Canada and the United States of all necessary applications to seek exemptions, if required, from the ~~Notes is required to be delivered under~~ prospectus, registration and other requirements of applicable securities laws of jurisdictions in Canada and the ~~1933 Act, will timely file all documents required to be filed with~~ United States for the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to issue by the Corporation and the ~~Underwriters, is listed on Schedule B~~ Manager of the securities to be issued in the Pre-Arrangement Reorganization and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433the Arrangement, and ~~has complied and will comply~~ such other exemptions that are necessary or desirable in connection with the ~~requirements of Rule 433 applicable to any Permitted Free Writing Prospectus~~Pre-Arrangement Reorganization and the Arrangement; (d) on or before the Effective Date, ~~including timely filing with~~ enter into the ~~Commission where required, legending and record keeping.~~Tax Matters Agreement; and (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date~~) in the Registration Statement~~, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) ~~a twelve-month period beginning not later than~~ make an application to list the ~~first day of~~ Corporation New Preference Shares on the ~~Corporation’s fiscal quarter next following the effective date of the Registration Statement~~ TSX; and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection jointly with the ~~qualification of~~ Manager, make an application to list the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes Manager Class A Shares on the ~~New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary~~ TSX and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)NYSE.

Appears in 2 contracts

Samples: Arrangement Agreement (Brookfield Asset Management Ltd.), Arrangement Agreement (Brookfield Asset Management Inc.)

Covenants of the Corporation. ~~The Corporation covenants and agrees with the several Underwriters that:~~ (a) The ~~Corporation will cause any Preliminary Prospectus~~ Board and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will Corporation agree use ~~its~~ their reasonable best efforts to ~~prevent~~ take all Necessary Action (subject to the ~~issuance~~ Board’s fiduciary duties) to (i) cause the Board to be comprised of ~~any~~ at least seven (7) Directors or such ~~stop order~~ other number of Directors as the Board may determine, subject to the terms of this Agreement, the Charter or the Bylaws of the Corporation; (ii) cause the individuals designated in accordance with Section 1 to be included in the slate of nominees to be elected to the Board at the next annual or special meeting of stockholders of the Corporation at which Directors are to be elected, in accordance with the Bylaws, Charter and General Corporation Law of the State of Delaware and at each annual meeting of stockholders of the Corporation thereafter at which such Director’s term expires; (iii) cause the individuals designated in accordance with Section 2(c) to ~~obtain as soon as possible its lifting~~fill the applicable vacancies on the Board, ~~if issued~~in accordance with the Bylaws, Charter, Securities Laws, General Corporation Law of the State of Delaware and The Nasdaq Stock Exchange rules and (iv) cause a Just Rocks Director to be the Chairperson of the Board. (b) ~~If at any time~~ The Mainsail Related Parties and the Just Rocks Related Parties shall comply with the requirements of the Charter and Bylaws when ~~a prospectus relating~~ designating and nominating individuals as Directors, in each case, to the ~~Notes (or~~ extent such requirements are applicable to Directors generally. Notwithstanding anything to the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements thereincontrary set forth herein, in the ~~light~~ event that the Board determines, within sixty (60) days after compliance with the first sentence of this Section 4(b), in good faith, after consultation with outside legal counsel, that its nomination, appointment or election of a particular Director designated in accordance with Section 1 or Section 2, as applicable, would constitute a breach of its fiduciary duties to the Corporation’s stockholders or does not otherwise comply with any requirements of the ~~circumstances under which they were made~~Charter or Bylaws and Securities Laws, ~~not misleading~~then the Board shall inform the Mainsail Related Parties and/or the Just Rocks Related Parties, as applicable, of such determination in writing and explain in reasonable detail the basis for such determination and shall, to the fullest extent permitted by law, nominate, appoint or ~~if it is necessary at any time~~ elect another individual designated for nomination, election or appointment to ~~amend~~ the ~~Pricing Disclosure Package or~~ Board by the ~~Prospectus~~ Mainsail Related Parties and/or the Just Rocks Related Parties, as applicable (subject in each case to ~~comply with the 1933 Act,~~ this Section 4(b)). The Board and the Corporation ~~promptly will prepare and file~~ shall, to the fullest extent permitted by law, take all Necessary Action (subject to the Board’s fiduciary duties) required by this Section 4 with respect to the ~~Commission an amendment~~nomination, ~~supplement~~ appointment or ~~an appropriate document pursuant~~ election of such substitute designees to ~~Section 13 or 14 of~~ the ~~1934 Act which will correct such statement or omission or which will effect such compliance~~Board. (c) ~~The Corporation, during~~ In addition to any voting requirements contained in this Agreement or the ~~period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all~~ organizational documents ~~required to be filed with the Commission pursuant to Section 13 or 14~~ of the ~~1934 Act~~Corporation or any of its Subsidiaries, the Corporation shall not, directly or indirectly, enter into or conduct business or operations or hold or acquire assets in its own name or otherwise other than through Brilliant Earth, LLC and its Subsidiaries without the prior written approval of (i) Mainsail and each of the Mainsail Holdcos for as long as the Mainsail Related Parties beneficially own, directly or indirectly, in the aggregate five percent (5%) or more of all issued and outstanding Common Units and (ii) Just Rocks for as long as the Just Rocks Related Parties beneficially own, directly or indirectly, in the aggregate five percent (5%) or more of all issued and outstanding Common Units, provided, however, that nothing in this clause (c) shall be deemed to prohibit the Corporation from, and no consent of Mainsail Mainsail Holdcos, Just Rocks or any other Person shall be required for the Corporation to engage in, (i) holding or using cash received by the Corporation as a result of the Corporation’s investment in Brilliant Earth, LLC or (ii) re-investing cash into Brilliant Earth, LLC (whether by way of intercompany loan, investment or otherwise). (d) ~~Without~~ If the ~~prior consent~~ Corporation ceases to be subject to the periodic reporting requirements of the ~~Underwriters~~Exchange Act of 1934, as amended, or any during which the Corporation is not in compliance with such requirements, the Corporation ~~has not made and will not make any offer relating~~ shall deliver to the ~~Notes that would constitute a “free writing prospectus” as defined in Rule 405~~ Mainsail Related Parties (i) annual audited, consolidated and consolidating financial statements of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and its Subsidiaries (including the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (eCompany) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business within 120 days after the ~~date hereof. (f) The Corporation agrees that if at any time following the issuance~~ end of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statementeach fiscal year, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by a nationally or regionally recognized independent ~~certified~~ public ~~accountants unless required~~ accounting firm selected by ~~the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of~~ the Corporation’s ~~fiscal quarter next following the effective date~~ board of ~~the Registration Statement~~ directors and (ii) ~~a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you~~quarterly unaudited, ~~without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package~~ consolidated and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers consolidating financial statements of the Corporation and ~~any such consultants~~its Subsidiaries (including the Company), including a balance sheet and statements of income, cash flow and stockholders equity, and updated capitalization tables, within 30 days after the ~~cost~~ end of ~~any aircraft chartered in connection~~ each fiscal quarter, accompanied by a comparison of such quarterly results with budgeted results and with the ~~road show; provided, however,~~ results for the ~~Underwriters shall reimburse a portion of~~ corresponding period for the ~~costs and expenses referred to in this clause (x)~~prior year.

Appears in 2 contracts

Samples: Stockholders Agreement (Brilliant Earth Group, Inc.), Stockholders Agreement (Brilliant Earth Group, Inc.)

Covenants of the Corporation. The Corporation hereby covenants ~~and agrees with~~ to the ~~several Underwriters that~~Underwriter that the Corporation: (a) ~~The Corporation~~ will ~~cause any Preliminary~~ file the Final Prospectus and other documents required under the ~~Prospectus~~ applicable Securities Laws with the Securities Regulators on or before October 19, 2020, or such earlier or later date as agreed to ~~be filed pursuant to~~by the Corporation and the Underwriter, in writing, and ~~in compliance with~~obtain a receipt therefor; (b) will advise the Underwriter, ~~Rule 424(b)~~ promptly after receiving notice thereof, of the ~~1933 Act Regulations~~time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Underwriter of each such filing and copies of such receipts; (c) will advise the ~~Underwriters~~ Underwriter, promptly after receiving notice or obtaining knowledge thereof, of: (i) the suspension of the ~~filing~~ qualification of the Units or the Over-Allotment Option for offering, sale, issuance, or grant, as applicable, in any jurisdiction, or the issuance by any Canadian Securities Regulators of any ~~amendment~~ order suspending or ~~supplement to~~ preventing the ~~Registration Statement~~use of the Preliminary Prospectus, the Final Prospectus or any Supplementary Material; (ii) the institution, threatening or contemplation of any proceeding for any such purposes; (iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or (iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Preliminary Prospectus or the Final Prospectus ~~and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~or for additional information, and will use its ~~best~~ commercially reasonable efforts to prevent the issuance of any ~~such stop~~ order ~~and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice~~ referred to in ~~Rule 173(a~~(i) of above and, if any such order is issued, to obtain the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs~~ withdrawal thereof as ~~a result of which the Pricing Disclosure Package or the Prospectus~~ quickly as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.possible; (d) ~~Without~~ from and including the ~~prior consent~~ date of this Agreement through to and including the Option Closing Time, do all such acts and things necessary to ensure that the representations and warranties of the ~~Underwriters, the~~ Corporation ~~has not made and will not make~~ contained in this Agreement or any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus certificates or ~~a free writing prospectus that is not required to be filed~~ documents delivered by the Corporation pursuant to ~~Rule 433~~ this Agreement remain materially true and correct and not do any such act or thing that would render any representation or warrant of the ~~1933 Act Regulations;~~ Corporation contained in this Agreement or any ~~such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented~~ certificates or documents delivered by it pursuant to ~~by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated~~ this Agreement materially untrue or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.incorrect; (e) ~~The~~ except to the extent the Corporation ~~agrees to prepare~~ participates in a ~~term sheet specifying~~ merger or business combination transaction which the ~~terms~~ Corporation’s board of directors determines is in the best interest of the ~~Notes~~ Corporation and following which the Corporation is not ~~contained~~ a “reporting issuer”, will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in ~~any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf~~ default of the ~~Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b)~~ requirements of the ~~1933 Act Regulations prior~~ Securities Laws of each of the Qualifying Jurisdictions to the ~~close of business two business days after~~ date which is 60 months following the ~~date hereof.~~Closing Date; (f) ~~The~~ except to the extent the Corporation ~~agrees that if at any time following~~ participates in a merger or business combination transaction which the ~~issuance~~ Corporation’s board of ~~a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with~~ directors determines is in the ~~information (not superseded or modified as~~ best interest of the ~~Effective Date) in~~ Corporation and following which the ~~Registration Statement,~~ Corporation is not listed on the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleadingTSX, the Corporation will ~~give prompt notice thereof~~ use its commercially reasonable efforts to maintain the listing of the Common Shares on the TSX or such other recognized stock exchange or quotation system as the Underwriter may approve, acting reasonably, to the ~~Underwriters and, if requested by~~ date that is 60 months following the ~~Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus~~ Closing Date so long as the Corporation meets the minimum listing requirements of the TSX or such other ~~document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement~~ exchange or ~~omission.~~quotation system; (g) ~~The~~ during the distribution of the Units, the Corporation will ~~make generally available~~ consult with the Underwriter and promptly provide to ~~its security holders, in each case as soon as practicable but not later than 60 days after~~ the ~~close~~ Underwriter drafts of any press releases of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required Corporation for review by the ~~1933 Act) covering (i)~~ Underwriter and the Underwriter’s counsel prior to issuance, provided that any such review will be completed in a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement.timely manner; and (h) ~~The Corporation~~ will ~~furnish to you, without charge, copies of~~ use the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing net proceeds of the offering of Units contemplated herein in the ~~Notes, including, without limitation, expenses associated with~~ manner and subject to the ~~production~~ qualifications described in the Prospectus under the heading “Use of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Proceeds”.

Appears in 2 contracts

Samples: Underwriting Agreement, Underwriting Agreement

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly ~~of the filing~~ of any amendment (and effectiveness thereof) or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and ~~any~~ the Blue Sky Survey, (ii~~) the preparation and printing of certificates for the Notes, (iii~~) the issuance and delivery of the Notes as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the Notes, (~~vii~~vi) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc. and (ixviii) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)depositary.

Appears in 2 contracts

Samples: Underwriting Agreement (Duke Energy Capital Trust V), Underwriting Agreement (Duke Energy Capital Trust V)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly ~~of the filing~~ of any amendment or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will not, during the period beginning from the date hereof and continuing to and including the date fifteen days after the date hereof, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any Notes, any security convertible into or exchangeable for the Notes or any debt security substantially similar to the Notes (except for the Notes issued pursuant to this Agreement), without your prior written consent. (h) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and ~~any~~ the Blue Sky Survey, (ii~~) the preparation and printing of certificates for the Notes, (iii~~) the issuance and delivery of the Notes as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the ~~Notes,~~ Notes (~~vii~~vi) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc. and (ixviii) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)depository.

Appears in 2 contracts

Samples: Underwriting Agreement (Duke Capital Financing Trust Iii), Underwriting Agreement (Duke Capital Financing Trust Iii)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly ~~of the filing~~ of any amendment or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, ~~earnings~~ earning statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will not, during the period of days from the date hereof, sell, offer to sell, grant any option for the sale of, or otherwise dispose of any Notes, any security convertible into or exchangeable for the Notes or any debt security substantially similar to the Notes (except for the Notes issued pursuant to this Agreement), without your prior written consent. (h) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and ~~any~~ the Blue Sky Survey, (ii~~) the preparation and printing of certificates for the Notes, (iii~~) the issuance and delivery of the Notes as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $~~5,000~~7,500, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and Prospectus and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the Notes, (~~vii~~vi) any fees and expenses in connection with ~~the~~ any listing of the Notes on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc., and (ixviii) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)depository.

Appears in 2 contracts

Samples: Underwriting Agreement (Texas Eastern Transmission Corp), Underwriting Agreement (Duke Capital Financing Trust Vi)

Covenants of the Corporation. ~~The~~ So long as the Corporation ~~covenants~~ is under an obligation pursuant to the provisions of this Section 5, the Corporation shall: 5.5.1 Prepare and ~~agrees~~ file with the ~~several Underwriters that: (a) The Corporation will cause any Preliminary Prospectus~~ Securities and ~~the Prospectus~~ Exchange Commission such amendments and supplements to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the such Registration Statement, and ~~will use~~ the prospectus used in connection therewith, as may be necessary to keep such Registration Statement effective for such period as shall be necessary to complete the marketing of the Shares included therein, but in no event for more than 120 days after the date the Shares may first be sold; 5.5.2 Furnish to Investor such number of copies of a prospectus, including, without limitation, a preliminary prospectus, in conformity with the requirements of the Act, and such other documents as Investor may reasonably request in order to facilitate the public sale or other disposition of such Shares; 5.5.3 Use its best efforts to ~~prevent~~ register or qualify, not later than the ~~issuance~~ effective date of any Registration Statement filed pursuant to this Agreement, the Shares covered by such ~~stop order~~ Registration Statement under the securities or Blue Sky laws of such jurisdictions within the United States as Investor may reasonably request, and do any and all other acts or things which may be necessary or advisable to ~~obtain as soon as possible its lifting, if issued.~~enable Investor to consummate the public sale or other disposition in such jurisdiction of such Shares; ~~(b) If~~ 5.5.4 Promptly notify Investor at any time when a prospectus relating to the ~~Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ Shares being distributed is required to be delivered under the ~~1933 Act~~ Act, of the happening of any event ~~occurs~~ as a result of which the ~~Pricing Disclosure Package or the Prospectus~~ prospectus included in such Registration Statement, as then ~~amended or supplemented would include~~ in effect, includes an untrue statement of material fact or omits to state a material ~~fact,~~ fact required to be stated therein or ~~omit to state any material fact~~ necessary to make the statements ~~therein,~~ therein not misleading in the light of the circumstances ~~under which they were made~~then existing and, ~~not misleading~~at the request of Investor, ~~or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act~~promptly prepare, ~~the Corporation promptly will prepare and~~ file with the ~~Commission an amendment~~Securities and Exchange Commission, and furnish to Investor, a reasonable number of copies of a supplement to, or an ~~appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct~~ amendment of, such ~~statement or omission or which will effect such compliance. (c) The Corporation~~prospectus as may be necessary so that, ~~during the period when a prospectus relating~~ as thereafter delivered to the ~~Notes is required to be delivered under the 1933 Act~~purchasers of such Shares, ~~will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has~~ such prospectus shall not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an 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,~~ therein not misleading in light of the circumstances then ~~prevailing~~existing; 5.5.5 Use its best efforts to furnish, ~~not misleading~~at the request of Investor or any underwriter of any distribution of the Shares, ~~the Corporation will give prompt notice thereof~~ an opinion of legal counsel to the ~~Underwriters and~~Corporation, ~~if requested~~ covering such matters as are typically covered by opinions of issuer's counsel in underwritten offerings under the ~~Underwriters, will prepare and furnish without charge~~ Act; 5.5.6 Use its best efforts to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close cause all of the ~~period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act,~~ Shares as to which ~~need not~~ Investor shall have requested registration to be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations listed on any ~~“road show” undertaken in connection with the marketing of the offering of the Notes~~recognized securities exchange, including, without limitation, ~~expenses associated~~ the National Association of Securities Dealers Automated Quotation System, on which the Shares are then listed and to maintain the currency and effectiveness of any such listings; and 5.5.7 Enter into an agreement with the ~~production of road show slides and graphics, fees and expenses of any consultants engaged~~ underwriters for such offering in ~~connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of~~ which the Corporation shall provide indemnities similar to those described in Section 5.7 hereof to the underwriters and ~~any such consultants,~~ in which the Corporation shall make the usual representations and ~~the cost~~ warranties made by issues of ~~any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred~~ equity securities to ~~in this clause (x)~~underwriters.

Appears in 1 contract

Samples: Subscription Agreement (Meritage Hospitality Group Inc /Mi/)

Appears in 1 contract

Samples: Underwriting Agreement (Atlantic Power Corp)

Covenants of the Corporation. 13.1 The Corporation covenants and agrees with the ~~several~~ Underwriters ~~that~~that it: (a) ~~The Corporation~~ will ~~cause any~~ advise the Underwriters, promptly after receiving notice thereof, of the time when the Preliminary Prospectus ~~and~~ Supplement, the Prospectus Supplement and any Supplemental Material has been filed and will provide evidence satisfactory to ~~be filed pursuant to~~the Underwriters of each filing; (b) will advise the Underwriters, ~~and in compliance with~~promptly after receiving notice or obtaining knowledge of: (i) the issuance by any Securities Commission, ~~Rule 424(b)~~ the TSX, the NYSE, the SEC or any other competent authority of any order suspending or preventing the use of any of the ~~1933 Act Regulations, and advise the Underwriters promptly~~ Offering Documents or trading of any securities of the ~~filing~~ Corporation; (ii) the suspension of the qualification of the Offered Securities for offering or sale in any of the Qualifying Jurisdictions or in the United States; and (iii) the institution, threatening or contemplation of any ~~amendment or supplement to the Registration Statement,~~ proceeding for any ~~Preliminary Prospectus or the Prospectus and~~ of ~~the institution by the Commission of any stop order proceedings in respect of the Registration Statement,~~ those purposes; and will use its ~~best~~ reasonable commercial efforts to prevent the issuance of any such ~~stop~~ order ~~and~~ and, if any such order is issued, to obtain the withdrawal of the order promptly; (c) will advise the Underwriters, promptly after receiving notice of or obtaining knowledge of any request made by any Securities Commission or the SEC to amend or supplement any of the Offering Documents or provide any additional information; (d) will apply the net proceeds from the issue and sale of the Offered Securities in accordance with the disclosure set out under the heading “Use of Proceeds” in the Prospectus Supplement; (e) will not, without prior consultation with RBC, on behalf of the Underwriters, during the period commencing on the date hereof and expiring on the completion of the distribution to the public of the Offered Securities, issue any press release; and (f) will make available management personnel of the Corporation to provide such assistance in marketing the Offering as ~~soon~~ the Underwriters may reasonably request. 13.2 The Corporation further covenants and agrees with the Underwriters: (a) in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the U.S. Securities Act or any similar rule), in connection with the sale of the Debentures, a prospectus after the nine-month period referred to in Section 10(a)(3) of the U.S. Securities Act, to prepare, at the Corporation’s expense, promptly upon request such amendment or amendments to the Registration Statement and the U.S. Prospectus as ~~possible its lifting, if issued.~~may be necessary to permit compliance with the requirements of Section 10(a)(3) of the U.S. Securities Act; (b) If if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement to be filed with the SEC and become effective before the Debentures may be sold, the Corporation will use its best efforts to cause such post-effective amendment to be filed and become effective, and will pay any applicable fees in accordance with the U.S. Securities Act, as soon as possible; and the Corporation will advise RBC promptly and, if requested by RBC, will confirm such advice in writing, (i) when such post-effective amendment has become effective, and (ii) when any related U.S. Prospectus is filed with the SEC pursuant to Rule 424(b) under the U.S. Securities Act (which the Corporation agrees to file in a timely manner in accordance with such rules); (c) to advise RBC promptly, confirming such advice in writing, of any request by the SEC for amendments or supplements to the Registration Statement, the U.S. Preliminary Prospectus, the U.S. Prospectus or any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement and, if the SEC should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise RBC promptly of any proposal to amend or supplement the Registration Statement, the U.S. Preliminary Prospectus or the U.S. Prospectus, and to provide RBC and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time ~~when~~ prior to any proposed filing and to file no such amendment or supplement to which RBC shall object in writing; (d) subject to Section 13.2(c) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Corporation with the SEC in order to comply with the Exchange Act for so long as a prospectus ~~relating~~ is required by the U.S. Securities Act to be delivered (whether physically or through compliance with Rule 172 under the ~~Notes (~~U.S. Securities Act or any similar rule) in connection with any sale of Debentures; and to provide RBC, for its review and comment, with a copy of such reports and statements and other documents to be filed by the ~~notice referred~~ Corporation pursuant to ~~in Rule 173(a~~Section 13, 14 or 15(d) of the ~~1933~~ Exchange Act ~~Regulations~~during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which RBC shall have reasonably objected in writing; and to promptly notify RBC of such filing; (e) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the U.S. Securities Act to be delivered (whether physically or through compliance with Rule 172 under the ~~1933~~ U.S. Securities Act or any similar rule) in connection with any sale of Debentures, which event ~~occurs as a result~~ could require the making of ~~which~~ any change in the ~~Pricing Disclosure Package or~~ U.S. Prospectus then being used so that the U.S. Prospectus ~~as then amended or supplemented~~ would not include an untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they ~~were~~ are made, not misleading, ~~or if~~ and to advise the Underwriters promptly if, during such period, it is shall become necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package or~~ U.S. Prospectus to cause the U.S. Prospectus to comply with the ~~1933~~ requirements of the U.S. Securities Act, ~~the Corporation promptly will~~ and, in each case, during such time, subject to Section 13.2(c) hereof, to prepare and ~~file with~~ furnish, at the ~~Commission an amendment~~Corporation’s expense, ~~supplement~~ to the Underwriters promptly such amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ such U.S. Prospectus as may be necessary to reflect any such change or ~~14 of the 1934 Act which will correct such statement or omission or which will~~ to effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof.; (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, ~~in each case as soon as practicable but not later than 60 days after the close~~ and to deliver to RBC, an earnings statement of the ~~period covered thereby, earnings statements~~ Corporation (~~in form complying with~~ which will satisfy the provisions of Section 11(a) of the U.S. Securities Act including by reason of Rule 158 ~~under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act~~thereunder) covering ~~(i)~~ a ~~twelve-month~~ period of twelve months beginning ~~not later than the first day of the Corporation’s fiscal quarter next following~~ after the effective date of the Registration Statement ~~and~~ (iias defined in Rule 158(c) a under the U.S. Securities Act) as soon as is reasonably practicable after the termination of such twelve-month period ~~beginning~~ but in any case not later than ~~the first day~~ March 30, 2019; (g) to furnish to RBC copies of the ~~Corporation’s fiscal quarter next following~~ Registration Statement, as initially filed with the ~~date~~ SEC, and of ~~this Agreement.~~all amendments thereto (including all exhibits thereto) and sufficient copies of the foregoing, as may reasonably be requested (other than exhibits) for distribution of a copy to each of the other Underwriters; (h) if immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Offered Securities remain unsold by the Underwriters, the Corporation will prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new shelf registration statement relating to the Offered Securities, in a form satisfactory to RBC and will use its best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Corporation will ~~furnish~~ take all other action necessary or appropriate to ~~you, without charge, copies~~ permit the public offering and sale of the Offered Securities to continue as contemplated in the then expired registration statement relating to the Offered Securities. References herein to the Registration Statement shall include such new shelf registration statement; (~~four~~ i) to comply with Rule 433(d) under the U.S. Securities Act (without reliance on Rule 164(b) under the U.S. Securities Act) and with Rule 433(g) under the U.S. Securities Act; and (j) not, at any time at or after the execution of ~~which will include all exhibits other than those incorporated~~ this Agreement, to, directly or indirectly, offer or sell any Debentures by ~~reference~~means of any “prospectus” (within the meaning of the U.S. Securities Act), or use any “prospectus” (within the ~~Pricing Disclosure Package and~~ meaning of the ~~Prospectus, and all amendments and supplements to such documents~~U.S. Securities Act) in connection with the offer or sale of the Debentures, in each case ~~as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for~~ other than the ~~qualification of~~ Supplemented Prospectus, the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any U.S. Preliminary Prospectus, of the ~~Prospectus, of~~ U.S. Prospectus or any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Prospectus.

Appears in 1 contract

Samples: Underwriting Agreement (Atlantic Power Corp)

Covenants of the Corporation. ~~The~~ (1) Other than as contemplated by or permitted under this Agreement or the Print Agreement or as contemplated in the 2011 Business Plan, at all times prior to the Closing Date, the Corporation ~~covenants and agrees with~~ will, unless it obtains the ~~several Underwriters that~~prior written consent of the Purchaser, not to be unreasonably withheld or delayed: (a) ~~The~~ permit the Purchaser and its representatives, without material interference to the ordinary conduct of business of the Corporation and its Subsidiaries, to have access during normal business hours to the Books and Records and the properties and assets used by the Corporation and its Subsidiaries and to management of the Corporation and its Subsidiaries (including for purposes of monthly financial and operational performance reviews), solely to verify the matters warranted in Section 3.05 as they relate to the Corporation and its Subsidiaries, provided that the Corporation and its Subsidiaries will not be required to disclose any information to the Purchaser where prohibited by any Applicable Laws or agreement. If any consent of any person or Governmental Authority is required to permit the Corporation or any of its Subsidiaries to release any information to the Purchaser, the Corporation will make commercially reasonable efforts to obtain, or to cause ~~any Preliminary Prospectus and the Prospectus~~ to be ~~filed pursuant to~~obtained, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such ~~stop order and to obtain~~ consent as soon as possible ~~its lifting, if issued.~~but will not be required to disclose such information prior to receipt of such consent; (b) ~~If at any time when a prospectus relating to~~ conduct the ~~Notes (or the notice referred to in Rule 173(a)~~ business of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a Corporation and its Subsidiaries in all material ~~fact, or omit to state any material fact necessary to make the statements therein,~~ respects in the ~~light~~ ordinary course of ~~the circumstances under which they were made~~business on a basis consistent with past practice (including maintaining capital expenditures, ~~not misleading~~funding of pension plan obligations, funding of outstanding CRTC benefits obligations and incurring programming costs) or ~~if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply~~ in accordance with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.2011 Business Plan; (c) ~~The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file~~ maintain all ~~documents required to be filed with the Commission pursuant to Section 13 or 14~~ of the ~~1934 Act.~~material assets of the Corporation and its Subsidiaries in good condition and maintain insurance upon the assets of the Corporation and its Subsidiaries in the ordinary course of business on a basis consistent with past practice; (d) ~~Without~~ maintain the ~~prior consent~~ Books and Records in the ordinary course of business on a basis consistent with past practice; (e) not enter into any transactions, or permit any of its Subsidiaries to enter into any transactions, with CTVglobemedia Publishing or any of its Subsidiaries except in the ordinary course of business on a basis consistent with past practice or in accordance with the 2011 Business Plan; and (f) refrain from taking any actions that would cause the representations and warranties of the ~~Underwriters~~Corporation in Section 3.05 to be untrue or incorrect in any material respect (provided that those representations and warranties that are qualified by materiality qualifiers will remain true and correct) at the Time of Closing except to the extent such arise from: (i) actions contemplated by or permitted under this Agreement; or (ii) the operation of the business of the Corporation and its Subsidiaries in all material respects in the ordinary course of business on a basis consistent with past practice. (2) At the request of the Purchaser, the Corporation ~~has not made and~~ will ~~not~~ diligently pursue all of the Corporation Third Party Consents. No party (other than the Corporation, as described below) will be obligated to make any ~~offer relating~~ payment to any person or to pay any charge or fee or make or incur any additional payment, guarantee or financial contribution or arrangement or to institute legal, arbitration or other proceedings in connection therewith. All costs and expenses incurred with respect to pursuing the ~~Notes that would constitute a “free writing prospectus” as defined in Rule 405 of~~ Corporation Third Party Consents will be borne by the ~~1933 Act Regulations~~Corporation, other than costs and expenses of any advisors, including legal counsel, retained by the Purchaser or the Vendors, which will be for the account of the Purchaser or such Vendor, as the case may be. (3) Other than (i) as contemplated by or permitted under this Agreement or the Print Agreement, (ii) as contemplated in the 2011 Business Plan, (iii) subject to Section 4.03(1)(e), transactions solely between the Corporation and any Subsidiary or between any of its Subsidiaries in the ordinary course of business on a ~~Permitted Free Writing Prospectus; each Underwriter~~basis consistent with past practice, ~~severally~~ (iv) matters relating solely to the CTVglobemedia Publishing Group that do not materially affect operating free cash flow of the Corporation on a consolidated basis, or (v) except for Sections 4.03(3)(a) through (g), inclusive, and ~~not jointly~~Sections 4.03(3)(u) and (v) as they relate to Sections 4.03(3)(a) through (g), ~~represents and agrees that~~in the ordinary course of business on a basis consistent with past practice, prior to the Closing Date, without the prior written consent of the ~~Corporation~~Purchaser (and, ~~it has not made and will not make any offer relating to~~ in the ~~Notes that would constitute a “free writing prospectus” as defined in Rule 405~~ case of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section ~~5(e) below~~4.03(3)(e), the ~~use~~ prior written consent of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the ~~Notes~~ Purchaser, Woodbridge, Teachers’ and Torstar) not ~~contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and~~ to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded be unreasonably withheld or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleadingdelayed, the Corporation will ~~give prompt notice thereof to the Underwriters and~~not, ~~if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus~~ directly or ~~other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission.~~indirectly: (ga) ~~The Corporation will make generally available to its security holders,~~ take any initiative that would result in ~~each case as soon as practicable but not later than 60 days after~~ a material change in the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers business of the Corporation and ~~any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse~~ its Subsidiaries on a ~~portion of the costs and expenses referred to in this clause (x).~~consolidated basis;

Appears in 1 contract

Samples: Transaction Agreement (Bce Inc)

Covenants of the Corporation. (1) The Corporation covenants ~~and agrees~~ with the ~~several Underwriters that~~Agents that it shall: (a) use its commercially reasonable efforts to fulfil all legal requirements to permit the creation, issuance, offering and sale of the Debentures, including, without limitation, compliance with the applicable securities laws of the applicable jurisdictions to enable the Debentures to be offered for sale and sold, without the necessity of filing a registration statement, prospectus or an offering memorandum, under the applicable securities laws of applicable jurisdictions in which the Debentures may be sold, to Purchasers through investment dealers or brokers duly registered under the applicable securities laws of the applicable jurisdictions who have complied with the relevant provisions of such laws; (b) use its commercially reasonable efforts to obtain the necessary regulatory consents from the Exchanges, if any, to effect the Offering on such terms as are mutually acceptable to the Agents and the Corporation, acting reasonably; (c) after the date hereof and prior to the completion of the distribution of the Debentures, the Corporation will promptly advise the Agents in writing of the full particulars of any material change (as defined in the Securities Act (Ontario)), in the business, affairs, operations, assets, liabilities or financial condition of the Corporation, on a consolidated basis, or of any change in any material fact (as defined in the Securities Act (Ontario)) contained or referred to in the Company Public Disclosure Documents which is, or may be, of such a nature as to render any statement contained in the Company Public Disclosure Documents untrue, false or misleading, result in a misrepresentation (as defined in the Securities Act (Ontario)), or result in any of such documents not complying with the laws of any Qualifying Province or the United States. The Corporation will ~~cause any Preliminary Prospectus~~ promptly prepare and file with the securities authorities in the Qualifying Provinces and the ~~Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of~~ United States any amendment or supplement to the Company Public Disclosure Documents, which in the opinion of the Agents and the Corporation, each acting reasonably, may be necessary or advisable to correct such untrue or misleading statement or omission. The Corporation shall in good faith discuss with the Agents any change in circumstances (actual, anticipated, contemplated or threatened) which is of such a nature that there may be a reasonable doubt as to whether written notice need be given to the Agents under the provisions of this Section 8(1)(c); (d) use its commercially reasonable efforts to arrange that the Underlying Shares are approved for listing and posting for trading on the Exchanges on the issuance thereof, subject only to the documentary filing requirements of each such Exchange; (e) to use commercially reasonable efforts to obtain a listing for the Maturity Shares on the Exchanges prior to the issuance of the Maturity Shares; (f) use commercially reasonable efforts to file within 45 days after the issue date of the Debentures the Shelf Registration Statement, ; (g) on or prior to any ~~Preliminary Prospectus or the Prospectus and~~ registration of the ~~institution by the Commission of any stop order proceedings in respect of~~ Debentures pursuant to the Registration ~~Statement~~Rights Agreement, or at such earlier time as may be so required, to qualify the Indenture under the Trust Indenture Act and to enter into any necessary supplemental indentures in connection therewith; (h) during the period from the Closing Date until two years after the Closing Date, not itself, and will ~~use~~ not permit any of its ~~best efforts~~ affiliates (as defined in Rule 144 under the U.S. Securities Act) to, resell any of the Debentures that have been acquired by any of them, except for Debentures purchased by the Corporation or any of its affiliates and resold in a transaction registered under the U.S. Securities Act; (i) neither itself, nor allow any of its affiliates (as defined in Rule 501(b) of Regulation D), directly or through any agent, sell, offer for sale, solicit offers to ~~prevent~~ buy or otherwise negotiate in respect of, any security (as defined in the ~~issuance~~ U.S. Securities Act), that is or will be integrated with the sale of the Debentures in a manner that would require registration of the Debentures under the U.S. Securities Act; (j) neither itself or any of its affiliates or any other person acting on its or their behalf (other than the Purchaser, as to which no covenant is given) will (i) solicit offers for, or offer or sell, the Debentures by means of any ~~such stop order and to obtain as soon as possible its lifting, if issued. (b~~form of general solicitation or general advertising within the meaning of Rule 502(e) ~~If at~~ of Regulation D or in any ~~time when~~ manner involving a ~~prospectus relating to~~ public offering within the ~~Notes (or the notice referred to in Rule 173(a~~meaning of Section 4(2) of the ~~1933~~ U.S. Securities Act ~~Regulations~~or (ii) engage in any Directed Selling Efforts while any of the Debentures are being offered for sale in Canada pursuant to Regulation S or during the related Distribution Compliance Period, and all such persons will comply with the offering restrictions requirement of Regulation S with respect to such offering; (k) the Corporation agrees to refuse or cause to be refused any transfer of the Debentures not made in accordance with Regulation S, pursuant to an effective Registration Statement under the U.S. Securities Act or pursuant to an exemption from the registration requirements of the U.S. Securities Act; (l) not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Debentures and will not take any action prohibited by Regulation M under the U.S. Exchange Act in connection with the distribution of the Debentures contemplated hereby; (m) so long as any Debentures which have been resold in the United States in reliance upon Rule 144A are outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the U.S. Securities Act, and if the Corporation is neither exempt from reporting pursuant to Rule 12g3-2(b) of the U.S. Exchange Act nor subject to and in compliance with Section 13 or 15(d) of the U.S. Exchange Act, the Corporation will furnish to any holder of the Debentures which have been sold in the United States in reliance upon Rule 144A and any prospective purchaser of the Debentures designated by such holder, upon request of such holder, the information required to be delivered pursuant to Rule 144A(d)(4) under the ~~1933~~ U.S. Securities Act (so long as such requirement is necessary in order to permit holders of the Debentures to effect resales under Rule 144A); (n) the Corporation shall provide any ~~event occurs~~ information reasonably available to the Corporation and its affiliates which is requested by Debenture holders in order for the Debenture holders to determine whether the Corporation or any of its affiliates is a “controlled foreign corporation” (a “CFC”) within the meaning of Section 957 of Internal Revenue Code of 1986, as ~~a result of which~~ amended (the ~~Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact~~“Code”), or ~~omit~~ a “passive foreign investment company” within the meaning of Section 1297 of the Code (a “PFIC”). The Corporation will provide prompt written notice to ~~state any material fact necessary to make the statements therein~~Debenture holders, if in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent reasonable judgement of the Corporation, at any time the Corporation determines that it ~~has not made~~ or any of its affiliates is a CFC or a PFIC. The Corporation will, within 90 days of receiving a written request from any Debenture holder, for the most recent taxable year ending before the date of such request, advise such holder as to whether the Corporation or any of its affiliates is a CFC or a PFIC; (o) the Corporation shall provide any information reasonably available to the Corporation and ~~will not~~ its affiliates which is requested by any Debenture holder in order for such Debenture holder to make ~~any offer~~ required filings with applicable taxing authorities including, without limitation, U.S. Internal Revenue Service filings on Form 5471 relating to the ~~Notes that would constitute~~ Corporation’s status as a ~~“free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by~~ CFC; (p) if the Corporation ~~pursuant to Rule 433~~ determines that the Corporation or any of ~~the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below)~~its affiliates is a PFIC, then within 90 days after receiving a written request from a Debenture holder, the ~~use of which has been consented~~ Corporation shall comply, based on information reasonably available to ~~by the Corporation and the Underwriters~~it, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information ~~(not superseded or modified as~~ and other reporting requirements set forth in Subtitle A, Chapter 1 subchapter P, Part VI of the ~~Effective Date) in~~ Code and the ~~Registration Statement~~U.S. Treasury Regulations promulgated thereunder (including, but not limited to, the ~~Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary~~ information and reporting requirements set forth in ~~order to make the statements therein, in light~~ Section 1295 of the ~~circumstances then prevailing, not misleading,~~ Code and the U.S. Treasury Regulations promulgated thereunder) by making such information available on the Corporation’s website; (q) the Corporation will ~~give prompt notice thereof to~~ assist the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, Lead Agent in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements arranging for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not Debentures to be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the designated PORTAL Market securities ~~laws of any jurisdiction~~ in accordance with the ~~provisions of Section 5(i)~~ rules and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required regulations adopted by the Financial Industry Regulatory Authority, Inc. relating to trading in the PORTAL Market and for the Debentures to be eligible for clearance and settlement through DTC; (ixr) not issue or announce the ~~costs~~ issuance of any ~~depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses~~ securities of the Corporation ~~relating~~ or any securities convertible into or exchangeable for or exercisable to ~~investor presentations~~ acquire Common Shares of the Corporation without the prior consent of the Lead Agent on behalf of the Agents, which consent will not be unreasonably withheld or delayed, during a period commencing on the date of execution of this Agreement and ending 90 days after the Closing Date (the “Restricted Period”), other than: (i) issuance of shares upon exercise of currently outstanding rights, or agreements, including options, warrants, debt and other convertible securities and any ~~“road show” undertaken~~ rights which have been granted or issued, subject to any necessary regulatory approval; (ii) the issuance of shares upon the exercise of currently outstanding options granted to officers, directors, employees or consultants of the Corporation or any subsidiary thereof pursuant to the Corporation’s Stock Option Plans; (iii) the issuance of options pursuant to and in accordance with the Stock Option Plans; or (iv) in connection with the ~~marketing~~ listing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers Common Shares of the Corporation on the Ghana Stock Exchange; and (s) within the time periods required under the applicable securities laws of the applicable jurisdictions, file such documents as may be required under the applicable securities laws of the applicable jurisdictions relating to the private placement of the Offered Shares which, without limiting the generality of the foregoing, shall include, if applicable, a Form 45-106F1 as prescribed by National Instrument 45-106 – Prospectus and ~~any such consultants, and~~ Registration Exemptions of the ~~cost of any aircraft chartered in connection~~ Canadian Securities Administrators (together with the ~~road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x~~applicable fee).

Appears in 1 contract

Samples: Agency Agreement (Golden Star Resources LTD)

Covenants of the Corporation. The Corporation hereby covenants ~~and agrees with~~ to the ~~several~~ Underwriters that: (a) ~~The Corporation~~ during the period from the date hereof to the Closing Date, it will ~~cause any Preliminary Prospectus and~~ promptly notify the ~~Prospectus to be filed pursuant to, and~~ Underwriters in ~~compliance with, Rule 424(b)~~ writing of the ~~1933 Act Regulations~~full particulars of any material change, ~~and advise~~ actual, anticipated, contemplated, proposed or threatened, in the ~~Underwriters promptly~~ business, financial condition, assets, liabilities (contingent or otherwise), results of operations or prospects of the ~~filing~~ Corporation or its Subsidiaries (on a consolidated basis), or to the Knowledge of the Corporation, RSA, or of any ~~amendment~~ change in any material fact contained or ~~supplement~~ referred to in the ~~Registration Statement~~Disclosure Materials, ~~any Preliminary Prospectus~~ the 2.7 Announcement or the ~~Prospectus~~ Acquisition Press Release and of the ~~institution by the Commission~~ existence of any ~~stop order proceedings~~ material fact which is, or may be, of such a nature as to render the Disclosure Materials, the 2.7 Announcement or the Acquisition Press Release untrue, false or misleading in a material respect or result in a misrepresentation. It shall, to the satisfaction of the ~~Registration Statement~~Underwriters and their counsel, acting reasonably, promptly comply with all applicable filing and ~~will use its best efforts~~ other requirements under the Canadian Securities Laws in the Offering Jurisdictions as a result of such change or fact. The Corporation shall, in good faith, first discuss with the Underwriters any change in circumstances (actual, proposed or, within the Corporation’s Knowledge, threatened) or fact which is of such a nature that there is or could be reasonable doubt whether notice need be given to ~~prevent~~ the ~~issuance~~ Underwriters pursuant to this Subsection 5(a). For greater certainty but not so as to limit the generality of ~~any such stop order~~ the foregoing, it is understood and agreed that, during the period from the date hereof to ~~obtain as soon as possible its lifting~~the Closing Date, if ~~issued.~~the Underwriters reasonably determine, after consultation with the Corporation, that a material change or change in a material fact has occurred which makes untrue or misleading any statement of a material fact contained or referred to in the Disclosure Materials, the 2.7 Announcement or the Acquisition Press Release, or which may result in a misrepresentation, the Corporation will promptly prepare any amendment to such Disclosure Materials which in its opinion, acting reasonably, may be necessary or advisable, after consultation with the Underwriters and deliver to the Underwriters a copy of such amendment and such other documents as the Underwriters shall reasonably require; (b) If the Corporation will use its reasonable best efforts to fulfil, at ~~any time when a prospectus relating~~ or prior to the ~~Notes (or the notice referred to in Rule 173(a)~~ Closing Date, each of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, conditions set out in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.this Agreement; (c) ~~The Corporation, during~~ it will use its commercially reasonable efforts to expeditiously pursue the ~~period when a prospectus relating~~ satisfaction of all conditions to the ~~Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ completion of the ~~1934 Act.~~Offering and the Acquisition, in each case, in its control; (d) ~~Without~~ except as required by applicable Law, it will not distribute any documents relating to the ~~prior consent of the Underwriters, the Corporation has not made~~ Offering and will not make any ~~offer relating to~~ public communications, verbally, electronically or in writing, regarding the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, Offering without the prior consent and/or approval of the Lead Underwriters, on behalf of the Underwriters; provided that the Lead Underwriters consent to (i) the inclusion of the Underwriters’ names and the summary of the transactions contemplated by this Agreement contained in the Disclosure Materials and in any supplementary scheme circular, if applicable (if the Acquisition is implemented by a Scheme) or the offer document (if the Acquisition is implemented by a Takeover Offer), and (ii) the publication of this Agreement on a website pursuant to the Takeover Code; (e) During the period commencing on the date hereof and ending on the Closing Date, the Corporation will promptly inform the Underwriters of the full particulars of: (i) the issuance by any Canadian Securities Regulator or any other Governmental Authority of any order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose; (ii) any request made to the Corporation by any Governmental Authority for any information in respect of the Offering; and (iii) any notice or other correspondence received by the Corporation or any of its Subsidiaries from any Governmental Authority requesting information, a meeting or a hearing or commencing or threatening any investigation into the Corporation or its business, or to the Knowledge of the Corporation, ~~it has not made~~ RSA, that could reasonably be expected to have a Material Adverse Effect or prevent or materially impair the completion of the Offering; (f) the net proceeds to the Corporation from the issuance and sale of the Notes by the Corporation will be used in the manner specified in the Term Sheet; (g) the Corporation will make all necessary filings, obtain all regulatory consents and approvals (if any) and will ~~not make~~ pay all filing fees required to be paid in connection with the transactions contemplated in this Agreement; (h) the Corporation will promptly notify the Underwriters of any ~~offer relating~~ notice received by the Corporation that any rating assigned to the Notes by DBRS Limited, Xxxxx’x Investors Service, Inc. or Fitch Ratings Limited is to be lowered or that ~~would constitute a “free writing prospectus” as defined in Rule 405~~ such rating agency has under surveillance or review, with possible negative implications, its rating of the ~~1933 Act Regulations~~Notes; and (i) promptly following the termination of the Acquisition or the Separation Agreement, ~~other than a Permitted Free Writing Prospectus~~ or ~~a free writing prospectus that is~~ the determination not ~~required~~ to ~~be filed by~~ proceed with the Acquisition or the Separation, the Corporation ~~pursuant to Rule 433 of~~ shall provide the ~~1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the~~ Lead Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereofwith notice thereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement

Covenants of the Corporation. The Corporation hereby covenants ~~and agrees with~~ to the ~~several~~ Underwriters ~~that~~that the Corporation: (a) ~~The Corporation~~ will ~~cause any~~ advise the Underwriters, promptly after receiving notice thereof, of the time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the ~~Prospectus~~ Passport System and will provide evidence reasonably satisfactory to ~~be filed pursuant to~~the Underwriters of each such filing and copies of such receipts; (b) will advise the Underwriters, ~~and in compliance with~~promptly after receiving notice or obtaining knowledge thereof, ~~Rule 424(b~~of: (i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the ~~1933 Act Regulations~~Preliminary Prospectus, ~~and advise~~ the ~~Underwriters promptly~~ Final Prospectus or any Supplementary Material; (ii) the institution, threatening or contemplation of any proceeding for any such purposes; (iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the ~~filing~~ Corporation (including the Securities) has been issued by any Securities Regulator or the institution, threatening or contemplation of any ~~amendment~~ proceeding for any such purposes; or (iv) any requests made by any Canadian Securities Regulators for amending or ~~supplement to~~ supplementing the ~~Registration Statement, any~~ Preliminary Prospectus or the Final Prospectus ~~and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~or for additional information, and will use its ~~best~~ commercially reasonable efforts to prevent the issuance of any ~~such stop~~ order ~~and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice~~ referred to in ~~Rule 173(a~~(i) of above and, if any such order is issued, to obtain the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs~~ withdrawal thereof as ~~a result of which the Pricing Disclosure Package or the Prospectus~~ quickly as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.possible; (c) ~~The Corporation, during the period when a prospectus relating~~ except to the ~~Notes~~ extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is ~~required to be delivered under~~ in the ~~1933 Act~~best interest of the Corporation and following which the Corporation is not a “reporting issuer”, will ~~timely file all documents required~~ use its reasonable best efforts to ~~be filed with~~ maintain its status as a “reporting issuer” (or the ~~Commission pursuant to Section 13 or 14~~ equivalent thereof) not in default of the ~~1934 Act.~~requirements of the Securities Laws of each of the Qualifying Jurisdictions to the date which is two years following the Closing Date; (d) ~~Without~~ except to the ~~prior consent~~ extent the Corporation participates in a merger or business combination transaction which the Corporation’s board of directors determines is in the best interest of the ~~Underwriters~~Corporation and following which the Corporation is not listed on the TSX, the Corporation ~~has not made and~~ will ~~not make any offer relating~~ use its reasonable best efforts to maintain the listing of the Common Shares on the TSX or such other recognized stock exchange or quotation system as the Underwriters may approve, acting reasonably, to the ~~Notes~~ date that ~~would constitute a “free writing prospectus”~~ is two years following the Closing Date so long as ~~defined in Rule 405~~ the Corporation meets the minimum listing requirements of the ~~1933 Act Regulations,~~ TSX or such other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus exchange or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.quotation system; (e) ~~The Corporation agrees to prepare a term sheet specifying~~ during the ~~terms~~ distribution of the ~~Notes not contained in~~ Securities, the Corporation will consult with the Underwriters and promptly provide to the Underwriters drafts of any ~~Preliminary Prospectus, substantially in~~ press releases of the ~~form of Schedule C hereto and approved~~ Corporation for review by the ~~Representatives on behalf of~~ Underwriters and the Underwriters~~, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations~~ ’ counsel prior to ~~the close of business two business days after the date hereof.~~issuance, provided that any such review will be completed in a timely manner; and (f) ~~The Corporation agrees that if at any time following~~ will use the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing net proceeds of the offering of Securities contemplated herein in the ~~Notes, including, without limitation, expenses associated with~~ manner and subject to the ~~production~~ qualifications described in the Prospectus under the heading “Use of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Proceeds”.

Appears in 1 contract

Samples: Underwriting Agreement

Covenants of the Corporation. The Corporation covenants and ~~agrees with the several Underwriters that~~agrees: (a) ~~The Corporation~~ that on the Closing Date, the Subscribed Shares will ~~cause any Preliminary Prospectus~~ be duly and ~~the Prospectus to~~ validly created, authorized, issued and sold on payment therefor and such Subscribed Shares shall be ~~filed pursuant to,~~ fully paid and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.non-assessable; (b) ~~If at any time when a prospectus relating~~ to cause the ~~Notes (or the notice referred to in Rule 173(a)~~ issuance and sale of the ~~1933 Act Regulations) is required~~ Subscribed Shares, and to ~~be delivered under~~ take commercially reasonable efforts to issue the ~~1933 Act any event occurs~~ Public Offering Common Shares (including those issuable as a result of ~~which~~ the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light exercise of the ~~circumstances under which they were made~~Over-Allotment Option, ~~not misleading, or if it is necessary at any time~~ to ~~amend~~ the ~~Pricing Disclosure Package or~~ extent applicable) in accordance with and subject to the ~~Prospectus to comply with the 1933 Act, the Corporation promptly will prepare~~ terms and ~~file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14~~ conditions of the ~~1934 Act which will correct such statement or omission or which will effect such compliance.~~Transaction Documents, respectively; (c) ~~The Corporation, during~~ to use the ~~period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ proceeds of the ~~1934 Act. (d) Without the prior consent~~ issue and sale of the ~~Underwriters~~Subscribed Shares only for the purposes identified in the section entitled “Use of Proceeds” in the Prospectus Supplement, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, be substantially in the form of the extract attached hereto as Schedule C ~~hereto and approved by~~ (subject to any changes as may be required to address comments from the ~~Representatives on behalf~~ Securities Commissions); (d) to comply with all covenants of the ~~Underwriters,~~ Corporation set forth in this Agreement and to ~~file such pricing term sheet as an “issuer free writing prospectus” pursuant~~ duly, punctually and faithfully perform all of its obligations under this Agreement; (e) not to ~~Rule 433(b) of the 1933 Act Regulations~~ amend its constating documents prior to the ~~close~~ Closing Date without the consent of ~~business two business days after~~ the ~~date hereof.~~Investor, which consent shall not be unreasonably withheld; (f) ~~The Corporation agrees~~ to provide prompt notice to the Investor of any termination of any of the Bought Deal Letter or the Underwriting Agreement; (g) to comply with Applicable Securities Laws with respect to the Public Offering; (h) during the period from the date of this Agreement and ending on the Time of Closing, not to make any material amendment or provide any material waiver, in each case that ~~if at~~ is adverse to the Corporation, to or under the Underwriting Agreement, in each case without the prior written consent of the Investor; (i) without the prior written consent of the Investor, which consent will not be unreasonably withheld or delayed, not to, and not to publicly disclose an intention to, for a period of 90 days after the Closing Date, offer, pledge, sell, contract to sell, sell any ~~time following~~ option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Shares or any securities convertible into or exercisable or exchangeable for Common Shares, except for (i) the issuance by the Corporation of ~~a Permitted Free Writing Prospectus any event occurs~~ Common Shares issued and sold pursuant to the Public Offering and the Private Placement, including as a result of ~~which such Permitted Free Writing Prospectus would conflict with~~ the ~~information~~ exercise of the Over-Allotment Option; (~~not superseded~~ ii) the issuance by the Corporation of the Common Shares upon the exercise of an option or ~~modified~~ warrant or the conversion of a security outstanding as of the ~~Effective Date~~date of this Agreement; (iii) the issuance by the Corporation of any Common Shares or options to acquire Common Shares or other award, right or grant pursuant to the Corporation’s stock option plan, deferred share unit plan, performance and restricted share unit plan or employee share purchase plan existing as of the date of this Agreement and the issuance of Common Shares in connection with the exercise, vesting or settlement of any such options, awards rights or grants; (iv) the issuance by the Corporation of any Common Shares pursuant to a dividend reinvestment plan or optional share purchase plan; (v) to satisfy existing contractual arrangements entered into prior to the date hereof and disclosed to the Investor in writing at or prior to such time as this Agreement is executed; or (vi) pursuant to the Corporation’s shareholder rights plan; (j) during the period from the date of this Agreement and ending on the Time of Closing, to promptly inform the Investor of the full particulars of: (i) any material change (actual, anticipated, contemplated, proposed or threatened) in or affecting the ~~Registration Statement~~business, operations, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Corporation and its Subsidiaries on a consolidated basis, of which the Corporation becomes aware since the date of this Agreement (including as a result of the COVID-19 Outbreak but only to the extent that the material change occurs after the date of this Agreement). For greater certainty, any impact of the COVID-19 Outbreak on the Corporation or its Subsidiaries prior to the date hereof already disclosed in the Public Record or to the Investor shall not be considered; (ii) any change in any material fact contained in the Preliminary Prospectuses, the ~~Pricing Disclosure Package~~ Prospectuses or any Supplementary Material since the date of such document, which change is, or may be of such a nature as: (A) would result in the Preliminary Prospectuses, the Prospectuses or any Supplementary Material, as they exist taken together in their entirety immediately prior to such change or material fact, containing a misrepresentation; (B) would result in the Preliminary Prospectuses, the Prospectuses or any Supplementary Material not complying in all material respects with Applicable Securities Laws; or (C) would reasonably be expected to have a significant adverse effect on the market price or value of the Subscribed Shares or the ~~Prospectus~~ Common Shares or ~~would include an untrue statement~~ to prevent, materially restrict or otherwise materially affect trading in or distribution of the Subscribed Shares; (iii) the occurrence or discovery of a material fact which would have been required under Applicable Securities Laws to have been stated in the Preliminary Prospectuses, the Prospectuses or ~~omit~~ any Supplementary Material had that fact arisen or been discovered on, or prior to, the date of any such document; (iv) any request from any Securities Commission or similar regulatory authority for any amendment to ~~state~~ the Preliminary Prospectuses, the Prospectuses, or for any material ~~fact necessary in~~ amendment to any other part of the Public Record or for any additional information of which the Corporation becomes aware since the date of this Agreement; (v) the issuance by any Securities Commission or similar regulatory authority, any stock exchange or any other competent authority of any order to ~~make the statements therein, in light~~ cease or suspend trading of any securities of the ~~circumstances then prevailing~~Corporation or of the institution or threat of institution of any proceedings for that purpose of which the Corporation becomes aware since the date of this Agreement; (vi) the receipt by the Corporation of any material communication from any Securities Commission or similar regulatory authority, ~~not misleading~~any stock exchange or any other competent authority relating to the Preliminary Prospectuses, the ~~Corporation will give prompt notice thereof~~ Prospectuses or any other part of the Public Record or the distribution of the Subscribed Shares or the Public Offering Common Shares (including those issuable as a result of the exercise of the Over-Allotment Option, to the ~~Underwriters and~~extent applicable), ~~if requested~~ of which the Corporation becomes aware since the date of this Agreement; or (vii) any notice or other correspondence received by the ~~Underwriters~~Corporation from any Securities Commission or similar regulatory authority requesting any information, ~~will prepare and furnish without charge~~ meeting or hearing relating to ~~each Underwriter a free writing prospectus or other document~~the Private Placement, the ~~use~~ Public Offering or any other event or state of affairs that the Corporation reasonably believes may be material to the Investor of which ~~has been consented to by~~ the ~~Underwriters, which will correct such conflict, statement or omission. (g) The~~ Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following becomes aware since the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Subscription Agreement (Cae Inc)

Covenants of the Corporation. (1) The Corporation hereby covenants to the Underwriter and ~~agrees~~ the Purchasers, and acknowledges that each of them is relying on such covenants in connection with the ~~several Underwriters that~~purchase of the Units, that it will: (a) ~~The Corporation will cause any Preliminary Prospectus~~ allow the Underwriter and its representatives to conduct all due diligence regarding the ~~Prospectus~~ Corporation, and its subsidiaries which the Underwriter may reasonably require to be ~~filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement~~ conducted prior to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.Closing Time; (b) If fulfill or cause to be fulfilled, at ~~any time when a prospectus relating~~ or prior to the ~~Notes (or the notice referred to in Rule 173(a)~~ Closing Time, each of the ~~1933 Act Regulations) is~~ conditions required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, fulfilled by it set out in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section ~~13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.~~6; (c) ~~The Corporation~~until the expiry of the Warrants in accordance with their terms, ~~during the period when~~ use commercially reasonable efforts to remain a ~~prospectus relating to the Notes is required to be delivered~~ corporation validly existing under the ~~1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ laws of the ~~1934 Act.~~Province of Ontario, licensed, registered or qualified as an extra-provincial or foreign corporation in all jurisdictions where the Corporation determines such licensing, registration or qualification is necessary to carry on its business, provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, sale of all or substantially all of the Corporation's assets, takeover bid, merger or other similar transaction; (d) ~~Without~~ until the ~~prior consent~~ expiry of the ~~Underwriters~~Warrants in accordance with their terms, maintain its status as a “reporting issuer” under the Securities Laws of at least one jurisdiction of Canada not in default of any requirement of such Securities Laws, provided that this clause shall not be construed as limiting or restricting the Corporation ~~has not made and will not make any offer relating to the Notes that would constitute~~ from completing a ~~“free writing prospectus” as defined in Rule 405~~ consolidation, amalgamation, arrangement, sale of ~~the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent~~ all or substantially all of the Corporation's assets, ~~it has not made and will not make any offer relating to~~ takeover bid, merger or other similar transaction; (e) until the ~~Notes that would constitute a “free writing prospectus” as defined in Rule 405~~ expiry of the ~~1933 Act Regulations~~Warrants in accordance with their terms, use commercially reasonable efforts to maintain the listing of the Common Shares on the CSE or such other ~~than~~ recognized stock exchange or quotation system in Canada, provided that this clause shall not be construed as limiting or restricting the Corporation from completing a ~~Permitted Free Writing Prospectus~~ consolidation, amalgamation, arrangement, sale of all or ~~a free writing prospectus that is not~~ substantially all of the Corporation's assets, takeover bid, merger or other similar transaction; (f) duly execute and deliver the Transaction Documents at the Closing Time, and comply with and satisfy all terms, conditions and covenants therein contained to be complied with or satisfied by the Corporation; (g) fulfill all legal requirements to permit the creation and issuance of the Common Shares and the Warrants comprising the Units and the Compensation Warrants at the Closing Time and the issuance of the Common Shares issuable upon exercise of the Warrants and the Compensation Warrants, as applicable, all as contemplated by the Transaction Documents, and file or cause to be filed all forms, notices, documents, applications, undertakings or certificates required to be filed by the Corporation ~~pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed~~ in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply connection with the ~~requirements~~ Offering so that the distribution of ~~Rule 433 applicable to any Permitted Free Writing Prospectus, including timely~~ such securities may lawfully occur without the necessity of filing ~~with~~ a prospectus in Canada or a registration statement in the ~~Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained~~ United States or similar document in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement.jurisdiction; (h) ~~The Corporation will furnish to you~~ensure that, ~~without charge~~at the Closing Time, ~~copies~~ the Common Shares are duly authorized and validly created and, upon receipt of full payment therefore, are issued as fully paid and non- assessable shares in the capital of the ~~Registration Statement (four of which will include~~ Corporation and shall have attributes corresponding in all ~~exhibits other than those incorporated by reference),~~ material respects to the ~~Pricing Disclosure Package~~ description thereof set forth in this Agreement and the ~~Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request.~~Subscription Agreements; (i) ~~The Corporation will arrange or cooperate~~ ensure that, at the Closing Time, the Warrants and the Compensation Warrants shall be validly created and issued and shall have attributes corresponding in ~~arrangements for~~ all material respects to the ~~qualification of~~ description thereof set forth in this Agreement and the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject.Subscription Agreements; (j) ~~The Corporation will pay~~ ensure that at all ~~expenses incident~~ times prior to the ~~performance~~ expiry of ~~its obligations under this Agreement~~ the Warrants (including any warrants issuable upon exercise of the Compensation Warrants), a sufficient number of Warrant Shares are allotted and reserved for issuance upon the due exercise of the Warrants in accordance with their terms; (ik) ensure that at all times prior to the expiry of the Compensation Warrants, a sufficient number of Common Shares and Warrants are allotted and reserved for issuance upon the due exercise of the Compensation Warrants in accordance with their terms; (l) ensure that the Warrant Shares issuable upon the due exercise of the Warrants (including any warrants issuable upon exercise of the Compensation Warrants) shall be duly issued as fully paid and non-assessable Common Shares of the Corporation on payment of the exercise price therefor; (m) subject to applicable law, obtain the prior approval of the Underwriter as to the content and form of any press release relating to the Offering (such consent not to be unreasonably withheld or delayed); (n) for the period of 120 days following the Closing Date, not, directly or indirectly, offer, issue, sell, grant, secure, pledge, or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to acquire Common Shares or other equity securities of the Corporation, without the prior written consent of the Underwriter (such consent not to be unreasonably withheld or delayed), other than in conjunction with: (A) the ~~printing~~ grant of stock options and ~~filing~~ other similar issuances pursuant to the share incentive plan of the ~~Registration Statement~~ Corporation and other share compensation arrangements, provided that the ~~printing of this Agreement and any Blue Sky Survey,~~ exercise price thereof shall not be less than the Exercise Price; (iiB) the ~~preparation~~ exercise of outstanding stock options and ~~printing~~ warrants; (C) obligations of ~~certificates for~~ the ~~Notes,~~ Corporation in respect of existing agreements; or (~~iii~~D) the issuance ~~and delivery~~ of securities by the ~~Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters~~ Corporation in connection with acquisitions in the ~~qualification~~ normal course of business; (o) prior to the Closing Time, cause each of the ~~Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i)~~ directors and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses senior officers of the Corporation ~~relating~~ to ~~investor presentations on any “road show” undertaken~~ enter into a lock-up undertaking in ~~connection with the marketing~~ favour of the ~~offering~~ Underwriter pursuant to which such person shall agree not to, directly or indirectly, offer, issue, sell, grant, secure, pledge, or otherwise transfer, dispose of or monetize, or engage in any hedging transaction, or enter into any form of agreement or arrangement the consequence of which is to alter economic exposure to, or announce any intention to do so, in any manner whatsoever, any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to acquire Common Shares or other equity securities of the ~~Notes~~Corporation for a period of 120 days after the Closing Date, without the prior written consent of the Underwriter (such consent not to be unreasonably withheld or delayed), other than in conjunction with: (A) transfers by any such person to its family members or affiliates, provided that each transferee shall, as a condition precedent to such transfer, agree to enter into a substantially similar undertaking; (B) transfer upon the death of such individual, provided that the transferee shall, as a condition precedent to such transfer, agree to enter into a substantially similar undertaking (C) in order to accept a bona fide take-over bid made to all securityholders of the Corporation or similar business combination transaction; (D) the exercise or conversion of any securities by a director or senior officer (including, without limitation, ~~expenses associated~~ stock options and warrants), provided that any Common Shares or other securities received upon such exercise or conversion will also be subject to the lock-up undertaking; or (E) a pledge to a bank or other financial institution for the purpose of giving collateral for a debt made in good faith, but solely to the extent that such bank or financial institution agrees in writing to be bound by the terms of the lock-up undertaking; (p) use its commercially reasonable efforts to have the Common Shares issued pursuant to this Offering, including the Warrant Shares, posted and listed for trading on the CSE upon issuance (or if the Common Shares are no longer traded on the CSE, on such other exchange as the Common Shares are then traded) as soon as possible following the Closing; (q) execute and file with the ~~production~~ Securities Regulators all forms, notices and certificates relating to the Offering required to be filed pursuant to the Securities Laws in the time required by applicable Securities Laws, including, for greater certainty, all forms, notices and certificates set forth in the opinions delivered to the Underwriter pursuant to this Agreement required to be filed by the Corporation; and (r) promptly notify the Underwriter of ~~road show slides and graphics, fees and expenses of any consultants engaged in connection with~~ the ~~road show presentations with the prior approval of~~ receipt by the Corporation, ~~travel and lodging expenses~~ or any subsidiaries of any notice by any judicial or regulatory authority or any stock exchange requesting any information, meeting or hearing relating to such entity for or in respect of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Offering.

Appears in 1 contract

Samples: Underwriting Agreement

Covenants of the Corporation. The Corporation covenants and agrees with the ~~several Underwriters that~~Agent as follows: (a) ~~The~~ the Corporation will ~~cause any Preliminary Prospectus and~~ use commercially reasonable efforts to file a final prospectus with the ~~Prospectus to be filed pursuant to, and~~ securities regulatory authorities in ~~compliance with, Rule 424(b)~~ each of the ~~1933 Act Regulations~~Canadian Offering Jurisdictions and obtain a receipt therefor from the Ontario Securities Commission, ~~and advise~~ as principal regulator. For greater certainty in the ~~Underwriters promptly~~ event of multiple closings of the ~~filing of any amendment or supplement to~~ Offering the ~~Registration Statement, any Preliminary Prospectus or the Prospectus and~~ first closing of the ~~institution by~~ Offering will be the ~~Commission~~ relevant date for the calculation of ~~any stop order proceedings in respect of~~ time for the ~~Registration Statement, and will use its best efforts~~ Qualification Date to ~~prevent the issuance of any such stop order and~~ have been caused to ~~obtain as soon as possible its lifting, if issued.~~occur; (b) ~~If at any time when a prospectus relating to~~ as soon as reasonably possible after the ~~Notes (~~Closing Date or an Additional Closing Date and by no later than the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 ActDeadline Date, the Corporation ~~promptly~~ will ~~prepare~~ adopt and ~~file~~ implement a corporate governance framework that is consistent with the ~~Commission~~ requirements of a corporation listed on a major Canadian or United States Stock exchange, including the appointment of a chief financial officer and independent directors as well as the establishment and appointment of an ~~amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.~~audit committee; (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as ~~practicable but not later than 60 days after~~ reasonably possible, and in any event by the ~~close of~~ Closing Date or an Additional Closing Date the ~~period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not~~ Corporation shall take all such steps as may be ~~certified by independent certified public accountants unless~~ required by the ~~1933 Act) covering (i)~~ Agent and the Agent’s counsel to enable the Special Warrants to be offered for sale and sold on a ~~twelve-month period beginning not later than~~ private placement basis to Subscribers in the ~~first day~~ Selling Jurisdictions that qualify as “accredited investors” under Applicable Securities Laws through the Agent or any other investment dealers or brokers registered in any of the ~~Corporation’s fiscal quarter next following the effective date~~ Selling Jurisdictions by way of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to youexemptions set forth in Applicable Securities Laws, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or in any state, to ~~file any general consents~~ consent to service of process in any state other than with respect to claims related to the Offering or to comply with any continuous disclosure or other similar requirements; (d) the Corporation will make all filings necessary with each applicable Securities Commission and pay all applicable fees in connection with the Offering in full compliance with the manner and within the time limits prescribed by Applicable Securities Laws; (e) the Corporation shall duly, faithfully and punctually perform all the obligations to be performed by it and comply with its covenants and agreements hereunder and under the ~~laws of any state where it is not now so subject.~~Transaction Documents; (jf) ~~The Corporation will pay all expenses incident to~~ during the ~~performance of its obligations under this Agreement including~~ period commencing with the date hereof and ending on the Deadline Date: (i) the ~~printing and filing~~ Corporation will promptly inform the Agent of the ~~Registration Statement~~ full particulars of: (A) any material change (actual, anticipated or threatened) in or affecting the business, operations, the Licenses, Licensed IP, Registered Corporate IP revenues, capital, properties, assets, liabilities, condition (financial or otherwise) or results of operations of the Corporation and the ~~printing~~ Subsidiary, taken as a whole; and (B) the occurrence of a material fact or event, which, in any such case, is, or may be, of such a nature as to render any portion of the representations and warranties in this Agreement untrue, false or misleading in any material respect; (ii) promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such acts, documents and things as the Agents may reasonably require from time to time for the purpose of giving effect to this Agreement; (g) during the period commencing with the date hereof and ending on the Automatic Exercise Date, the Corporation will promptly inform the Agent of: (i) the receipt by the Corporation of any ~~Blue Sky Survey,~~ communication from any Securities Commission or similar regulatory authority or a stock exchange relating to any part of the Offering; and (ii) the ~~preparation and printing~~ issuance by any Securities Commission or similar regulatory authority or by any other competent authority, of ~~certificates~~ any order to cease trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose; (h) the ~~Notes, (iii)~~ Corporation shall use the proceeds from the issuance and ~~delivery~~ sale of the ~~Notes as specified herein~~Special Warrants towards the completion of the purchase, conversion and outfitting of and expansion capacity greenhouse facility for marijuana production, and for working capital and general corporate purposes; and (ivi) the ~~fees and disbursements of counsel for~~ Corporation shall use its best efforts to maintain its status as a “specified small business corporation” (within the ~~Underwriters in connection with the qualification~~ meaning of the ~~Notes under~~ regulations to the ~~securities laws~~ Income Tax Act (Canada)) at all times until the Common Shares are listed on a designated stock exchange (within the meaning of ~~any jurisdiction in accordance with~~ the ~~provisions~~ Income Tax Act (Canada)) or until the Corporation becomes a “public corporation” (within the meaning of ~~Section 5(i~~the Income Tax Act (Canada)) and ~~in connection with the preparation of the Blue Sky Survey, such fees~~ shall not take any action that would cause or contribute to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of prevent the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any from maintaining such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)status.

Appears in 1 contract

Samples: Agency Agreement (CannTrust Holdings Inc.)

Covenants of the Corporation. ~~The~~ In further consideration of the agreements of the Underwriters herein contained, the Corporation covenants ~~and agrees with the several Underwriters that~~as follows: (a) The Corporation will ~~cause any Preliminary~~ prepare the Final Prospectus in a form approved by the Underwriters and will file such Final Prospectus with the ~~Prospectus~~ Commission pursuant to ~~be filed pursuant to, and in compliance with,~~ the applicable subparagraph of Rule 424(b) or Rule 434 within the time period prescribed. The Corporation will notify the Underwriters immediately, and confirm the notice in writing, (i) if not effective at the time of execution of this Agreement, of the ~~1933 Act Regulations~~effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment), and ~~advise the Underwriters promptly~~ of the filing of the Final Prospectus pursuant to Rule 424(b) or Rule 434, (ii) of any request by the Commission for any amendment to the Registration Statement, or any amendment or supplement to the ~~Registration Statement, any Preliminary~~ Final Prospectus or ~~the Prospectus~~ for additional information, and (iii) of the ~~institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration ~~Statement~~Statement of the suspension of the qualification of the securities for offering or sale in any jurisdiction, ~~and~~ or of the initiation or threatening of any proceeding for such purpose. The Corporation will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any ~~such~~ stop order ~~and~~ or of any order suspending any such qualification and, if any such order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (b) ~~If at any time when a prospectus relating~~ The Corporation will deliver to the ~~Notes (or the notice referred to in Rule 173(a)~~ Underwriters such number of conformed copies of the ~~1933 Act Regulations~~Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Final Prospectus and exhibits thereto) as such Underwriters may reasonably request and copies of each Preliminary Final Prospectus, the Final Prospectus and any amendment or supplement to such Final Prospectus. (c) The Corporation will furnish to the Underwriters, from time to time during the period when the Final Prospectus is required to be delivered under the ~~1933~~ Securities Act, such number of copies of the Final Prospectus (as amended or supplemented, if applicable) as they may reasonably request for the purposes contemplated by the Securities Act or the Securities Act Regulations. (d) The Corporation will deliver to the Underwriters notice of its intention to prepare or file any amendment to the Registration Statement relating to the Securities (including any post-effective amendment) or any amendment or supplement to the Final Prospectus (other than documents deemed to be incorporated by reference into the Final Prospectus) which the Corporation proposes for use by the Underwriters in connection with the offering of the Securities and which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations, will furnish the Underwriters and counsel for the Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object. (e) If, during such period after the Closing Date and prior to the date on which the distribution of Securities by the Underwriters is completed, any event ~~occurs~~ shall occur as a result of which it is necessary, in the ~~Pricing Disclosure Package~~ opinion of the Corporation's counsel, to amend or supplement the Final Prospectus (as then amended or ~~supplemented would include~~ supplemented) in order to ensure that the Final Prospectus does not contain an untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package or the~~ Final Prospectus to comply with ~~the 1933 Act~~law, the Corporation ~~promptly~~ will forthwith prepare and ~~file with~~ furnish, at the ~~Commission an amendment~~Corporation's own expense, ~~supplement~~ to the Underwriters, either amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ the Final Prospectus so that the statements in the Final Prospectus as so amended or 14 supplemented will not, in the light of the ~~1934 Act~~ circumstances under which they were made, be misleading or so that the Final Prospectus will ~~correct such statement or omission or which will effect such compliance~~comply with law, as the case may be. (cf) The Corporation, during the period when ~~a prospectus relating to~~ the ~~Notes~~ Final Prospectus is required to be delivered under the ~~1933~~ Securities Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 13, 14 or 14 15 of the ~~1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating~~ Exchange Act subsequent to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omissionStatement becomes effective. (g) The Corporation will ~~make generally available~~ endeavor to ~~its security holders, in each case as soon as practicable but not later than 60 days after~~ qualify the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement Securities for offer and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the securities or blue sky laws of such jurisdictions as ~~you designate~~ any Underwriter shall reasonably request and ~~will continue~~ to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such ~~qualifications in effect so long as required for~~ qualification and the ~~distribution~~printing of any memoranda concerning the aforesaid qualification; provided, however, that the Corporation shall not be required to qualify ~~as a foreign corporation or~~ to ~~file~~ do business in any ~~general consents to service of process under the laws of any state~~ jurisdiction where it is not now so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now subject. (h) During the period beginning on the date hereof and continuing to and including the Closing Date, the Corporation will not offer, sell, contract to sell or otherwise dispose of (other than in an offering made exclusively outside the United States) any securities of the Corporation substantially similar to the Securities or any securities convertible into or exchangeable for the Securities without the prior written consent of the Underwriters, other than shares of its common stock pursuant to its stock option and other benefit plans or commitments existing prior to the date of this Agreement. (i) During the period when the Securities are outstanding, the Corporation will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act. (j) The Corporation will ~~pay all expenses incident~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the ~~performance of its obligations under this Agreement including (i) the printing and filing~~ effective date of the Registration ~~Statement and the printing of this Agreement and any Blue Sky Survey~~Statement, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments an earnings statement or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses statements of the Corporation ~~relating to investor presentations on any “road show” undertaken in connection with~~ (which need not be audited) which shall satisfy the ~~marketing~~ requirements of Section 11(a) of the ~~offering~~ Securities Act and Rule 158 of the ~~Notes, including, without limitation, expenses associated with the production of road show slides~~ Securities Act Regulations and ~~graphics, fees and expenses of any consultants engaged~~ will advise you in ~~connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any~~ writing when such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)statement has been so made available.

Appears in 1 contract

Samples: Underwriting Agreement (M&t Bank Corp)

Covenants of the Corporation. The Corporation covenants and agrees with the several ~~Underwriters~~ Underwriters, the Forward Purchaser and the Forward Seller that: (a) The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters and the Forward Seller promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes~~ Shares (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Shares is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the ~~Underwriters~~Underwriters and the Forward Seller, the Corporation has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each ~~Underwriter~~Underwriter and the Forward Seller, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act ~~Regulations~~Regulations (“Rule 433”); any such free writing ~~prospectus (which shall include the pricing term sheet discussed in Section 5(e) below)~~prospectus, the use of which has been consented to by the Corporation and the ~~Underwriters~~Underwriters and the Forward Seller, is listed on Schedule B III hereto and herein is called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus or any electronic roadshow or other written communication that constitutes an offer to buy the Shares provided to investors by, or with the approval of, the Corporation, any event occurs as a result of which such Permitted Free Writing Prospectus or such electronic roadshow or other written communication would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and the Forward Seller and, if requested by the ~~Underwriters~~Underwriters and the Forward Seller, will prepare and furnish without charge to each Underwriter and the Forward Seller a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (gf) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (hg) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (ih) The Corporation will arrange or cooperate in ~~arrangements~~ arrangements, if necessary, for the qualification of the ~~Notes~~ Shares for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (ji) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement and the Forward Sale Agreement and the Additional Forward Sale Agreement, if any, including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the ~~Notes~~Shares, (iii) the issuance and delivery of the ~~Notes~~ Shares as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Shares under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~7(h) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees ~~charged by independent rating agencies for rating the Notes, (vii) any fees~~ and expenses in connection with the listing of the ~~Notes~~ Shares on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the Financial Industry Regulatory Authority, Inc., (ixviii) the costs of any depository arrangements for the ~~Notes~~ Shares with DTC or any successor depositary and (xix) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the ~~Notes~~Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (xix). (j) During a period of 60 days from the date of the Prospectus, the Corporation will not, without the prior written consent of the Representatives, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer, dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares or enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Shares, whether any such swap or transaction is to be settled by delivery of Shares or other securities, in cash or otherwise; provided, however, that the foregoing shall not apply to any securities or options to purchase any securities granted or sold pursuant to any employee or director compensation plans of the Corporation or employee or other investment plans of the Corporation in effect on the date of this Agreement. (k) The Corporation will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. Additionally, the Corporation will use its best efforts to list on the New York Stock Exchange, upon issuance by the Corporation, (i) the Corporation Shares to be issued and sold by the Corporation hereunder, if any, and (ii) the shares of Common Stock (if any) to be issued to the Forward Purchaser pursuant to the Forward Sale Agreement and the Additional Forward Sale Agreement, if any (whether pursuant to Physical Settlement, Net Share Settlement (as such terms are defined in the Forward Sale Agreement or the Additional Forward Sale Agreement, as applicable), the provisions of Section 9 (“Acceleration Events”) of the Forward Sale Agreement or the Additional Forward Sale Agreement, as applicable, or otherwise).

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. 4.1 The ~~Corporation covenants and agrees~~ Corporation, subject to Section 4.2 hereof, will comply with the ~~several Underwriters that: (a) The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b)~~ requirements of the 1933 Act ~~Regulations~~and the other Applicable Securities Laws, and ~~advise~~ will promptly notify the ~~Underwriters promptly~~ Representatives, and confirm the notice in writing, of (a) the effectiveness during the Prospectus Delivery Period of any post‑effective amendment to the Registration Statement or the filing of any supplement or amendment to the U.S. Preliminary Prospectus or the U.S. Prospectus, (b) the receipt of any comments from the SEC during the Prospectus Delivery Period, (c) any request by the SEC for any amendment to the Registration Statement or any amendment or supplement to the ~~Registration Statement, any~~ U.S. Preliminary Prospectus or the U.S. Prospectus or for additional information, and of (d) the ~~institution~~ issuance by the ~~Commission~~ SEC of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration ~~Statement~~Statement or of any order preventing or suspending the use of the U.S. Preliminary Prospectus or the U.S. Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Corporation will promptly effect the filings necessary pursuant to the 1933 Act and will take such steps as it deems necessary to ascertain promptly whether the U.S. Preliminary Prospectus and the U.S. Prospectus transmitted for filing with the SEC was received for filing by the SEC and, in the event that it was not, it will promptly file such document. The Corporation will use its reasonable best efforts to prevent the issuance of any ~~such~~ stop order ~~and~~ and, if any stop order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. 4.2 During the Prospectus Delivery Period, the Corporation will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement, or any amendment, supplement (bincluding any prospectus supplement) or revision to the Disclosure Package or the U.S. Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object (it being agreed that all references in this Agreement to information which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include all such information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under 1934 Act, which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the Initial Sale Time); 4.3 The Corporation shall deliver or cause to be delivered (i) to the Representatives, without charge, a signed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed with the OSC and the SEC and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period, as many copies of the Canadian Prospectus, the Canadian Offering Memorandum and the U.S. Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request; 4.4 The Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the SEC or available on SEDAR. 4.5 The Corporation shall deliver to each of the Underwriters, without charge, as many copies of the U.S. Preliminary Prospectus as such Underwriter may reasonably request, and the Corporation hereby consents to the use of such copies for purposes permitted by the 1933 Act or the other Applicable Securities Laws. The Corporation will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the U.S. Prospectus as such Underwriter may reasonably request. 4.6 The Corporation will comply with the 1933 Act and the 1934 Act so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the U.S. Prospectus. If at any time ~~when a prospectus relating to~~ during the ~~Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act~~ Prospectus Delivery Period, any event ~~occurs~~ shall occur or condition shall exist as a result of which it is necessary, in the ~~Pricing~~ opinion of counsel for the Underwriters or for the Corporation, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure Package or the U.S. Prospectus in order that the Disclosure Package or the U.S. Prospectus, as ~~then amended or supplemented would~~ the case may be, will not include an untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made~~existing at the Initial Sale Time or at the time it is delivered or conveyed to a purchaser, not misleading, or if it ~~is necessary~~ shall be necessary, in the opinion of either such counsel, at any such time to amend the ~~Pricing~~ Registration Statement or amend or supplement the Disclosure Package or the U.S. Prospectus in order to comply with the ~~1933 Act~~requirements of any law, the Corporation will (1) notify the Representatives of any such event, development or condition and (2) promptly ~~will~~ prepare and file with the ~~Commission an amendment~~SEC, such amendment or supplement ~~or an appropriate document pursuant~~ as may be necessary to ~~Section 13 or 14 of the 1934 Act which will~~ correct such statement or omission or ~~which~~ to make the Registration Statement, the Disclosure Package or the U.S. Prospectus comply with such law, and the Corporation will ~~effect~~ furnish to the Underwriters, without charge, such ~~compliance~~number of copies of such amendment or supplement as the Underwriters may reasonably request. ~~(c) The Corporation~~4.7 During the Prospectus Delivery Period, ~~during~~ the ~~period when~~ Corporation shall file, on a ~~prospectus relating to~~ timely basis, with the ~~Notes is required to be delivered under~~ Canadian Securities Regulators, the ~~1933 Act~~Securities Commissions, ~~will timely file~~ the Exchange and the NYSE all reports and documents required to be filed ~~with~~ under the ~~Commission pursuant~~ Applicable Securities Laws. 4.8 During the period commencing on the date hereof and ending on the Closing Date, the Corporation will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to ~~Section 13~~ sell, pledge, transfer or 14 establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the 1934 Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the 1933 Act in respect of, any debt securities of the Corporation similar to the Notes or securities exchangeable for or convertible into debt securities similar to the Notes (other than as contemplated by this Agreement with respect to the Notes). 4.9 The Corporation will prepare a final term sheet containing only a description of the Notes, in a form approved by the Underwriters and attached as Exhibit A hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (~~d) Without~~ such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement. 4.10 The Corporation represents that it has not made, and agrees that, unless it obtains the prior written consent of the ~~Underwriters~~Representatives, ~~the Corporation has not made and~~ it will not ~~make~~ make, any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not 0000 Xxx) required to be filed by the Corporation ~~pursuant to~~ with the SEC or retained by the Corporation under Rule 433 of the 1933 ~~Act Regulations~~Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to this Agreement. Any such free writing prospectus ~~(which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been~~ consented to or deemed to be consented to by the ~~Corporation and the Underwriters,~~ Representatives is ~~listed on Schedule B and herein called~~ hereinafter referred to as a “Permitted Free Writing Prospectus.” The Corporation ~~represents~~ agrees that (i) it has treated ~~or agrees that it~~ and will ~~treat~~ treat, as the case may be, each Permitted Free Writing Prospectus as an ~~“issuer free writing prospectus,” as defined in Rule 433~~Issuer Free Writing Prospectus, and (ii) has complied and will ~~comply~~ comply, as the case may be, with the requirements of ~~Rule~~ Rules 164 and 433 of the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the ~~Commission where required~~SEC, legending and record keeping~~. (e)~~ . The Corporation ~~agrees~~ consents to ~~prepare~~ the use by any Underwriter of a ~~term sheet specifying the terms of the Notes~~ free writing prospectus that (a) is not ~~contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as~~ an “issuer free writing prospectus” ~~pursuant to~~ as defined in Rule ~~433(b~~433, and (b) contains only (i) information describing the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134 under the 1933 Act ~~Regulations prior~~ or (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the Corporation contemplated in Section 4.9). From the date of commencement of the distribution of the Notes to the ~~close~~ date such distribution ceases, each Underwriter will not make use of ~~business two business days after~~ any “bluesheet” or provide any other Marketing Materials in respect of the ~~date hereof~~Notes without the approval of the Corporation and Xxxxxxx Xxxxx and no “standard term sheet” (as defined in NI 41-101) in respect of the Notes will be provided by them to any potential investors of the Notes without the approval of the Corporation and Xxxxxxx Xxxxx. ~~(f)~~ 4.11 The Corporation agrees ~~that if at~~ to pay the required OSC and SEC filing fees relating to the Notes and any other fees required by the Canadian Securities Regulators within the time ~~following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict~~ required by and in accordance with the ~~information (~~Applicable Securities Laws. 4.12 The Corporation has not ~~superseded~~ taken and will not take, directly or ~~modified as~~ indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the 1934 Act or otherwise, the stabilization or manipulation of the ~~Effective Date)~~ price of any securities of the Corporation to facilitate the sale or resale of the Notes. 4.13 The Corporation shall apply the net proceeds received by it from the sale of the Notes substantially in the ~~Registration Statement,~~ manner described under the ~~Pricing Disclosure Package or~~ caption “Use of Proceeds” in the Preliminary Prospectus ~~or would include an untrue statement~~ and the Prospectus. 4.14 The Corporation shall use its best efforts to ensure that members of ~~a material fact or omit~~ management are available to ~~state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof~~ provide assistance to the ~~Underwriters and~~Underwriters, if as requested by the Underwriters, ~~will prepare and furnish without charge~~ with respect to ~~each Underwriter a free writing prospectus or other document,~~ the ~~use~~ marketing of ~~which has been consented to by~~ the ~~Underwriters, which will correct such conflict, statement or omission~~Notes. ~~(g)~~ 4.15 The Corporation ~~will make generally available~~ shall use commercially reasonable efforts to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements apply for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes to be listed and posted for trading on the ~~New York Stock Exchange, (viii) any filing fee required by~~ NYSE at the ~~Financial Industry Regulatory Authority, (ix)~~ Time of Closing and to cause such listing to become effective within 30 days after the ~~costs~~ Time of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Closing.

Appears in 1 contract

Samples: Underwriting Agreement (Algonquin Power & Utilities Corp.)

Covenants of the Corporation. 13.1 The Corporation covenants and agrees with the ~~several~~ Underwriters ~~that~~that it: (a) ~~The Corporation~~ will ~~cause any Preliminary~~ advise the Underwriters, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplemental Material has been filed and receipts have been obtained and will provide evidence satisfactory to the ~~Prospectus to be filed pursuant to~~Underwriters of each filing and the issuance of receipts; (b) will advise the Underwriters, ~~and in compliance with~~promptly after receiving notice or obtaining knowledge of: (i) the issuance by any Securities Commission, ~~Rule 424(b)~~ the TSX, the NYSE, the SEC or any other competent authority of any order suspending or preventing the use of any of the ~~1933 Act Regulations, and advise the Underwriters promptly~~ Offering Documents or trading of any securities of the ~~filing~~ Corporation; (ii) the suspension of the qualification of the Offered Securities for offering or sale in any of the Qualifying Jurisdictions; and (iii) the institution, threatening or contemplation of any ~~amendment or supplement to the Registration Statement,~~ proceeding for any ~~Preliminary Prospectus or the Prospectus and~~ of ~~the institution by the Commission of any stop order proceedings in respect of the Registration Statement,~~ those purposes; and will use its ~~best~~ reasonable commercial efforts to prevent the issuance of any such ~~stop~~ order ~~and~~ and, if any such order is issued, to obtain the withdrawal of the order promptly; (c) will advise the Underwriters, promptly after receiving notice of or obtaining knowledge of any request made by any Securities Commission or the SEC to amend or supplement any of the Offering Documents or provide any additional information; (d) will apply the net proceeds from the issue and sale of the Offered Securities in accordance with the disclosure set out under the heading “Use of Proceeds” in the Preliminary Prospectus and the Final Prospectus; (e) will not, without prior consultation with TD Securities, on behalf of the Underwriters, during the period commencing on the date hereof and expiring on the completion of the distribution to the public of the Offered Securities, issue any press release; and (f) will make available management personnel of the Corporation to provide such assistance in marketing the Offering as ~~soon~~ the Underwriters may reasonably request. 13.2 The Corporation further covenants and agrees with the Underwriters: (a) in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the U.S. Securities Act or any similar rule), in connection with the sale of the Debentures, a prospectus after the nine-month period referred to in Section 10(a)(3) of the U.S. Securities Act, to prepare, at the Corporation’s expense, promptly upon request such amendment or amendments to the Registration Statement and the U.S. Prospectus as ~~possible its lifting, if issued.~~may be necessary to permit compliance with the requirements of Section 10(a)(3) of the U.S. Securities Act; (b) If if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the U.S. Securities Act, to be filed with the SEC and become effective before the Debentures may be sold, the Corporation will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the U.S. Securities Act, as soon as possible; and the Corporation will advise TD Securities promptly and, if requested by TD Securities, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the U.S. Securities Act is used, when the U.S. Prospectus is filed with the SEC pursuant to Rule 424(b) under the U.S. Securities Act (which the Corporation agrees to file in a timely manner in accordance with such rules); (c) to advise TD Securities promptly, confirming such advice in writing, of any request by the SEC for amendments or supplements to the Registration Statement, any U.S. Preliminary Prospectus, the U.S. Prospectus or any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement and, if the SEC should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise TD Securities promptly of any proposal to amend or supplement the Registration Statement, any U.S. Preliminary Prospectus or the U.S. Prospectus, and to provide TD Securities and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time ~~when~~ prior to any proposed filing and to file no such amendment or supplement to which TD Securities shall object in writing; (d) subject to Section 13.2(c) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Corporation with the SEC in order to comply with the Exchange Act for so long as a prospectus ~~relating~~ is required by the U.S. Securities Act to be delivered (whether physically or through compliance with Rule 172 under the ~~Notes (~~U.S. Securities Act or any similar rule) in connection with any sale of Debentures; and to provide TD Securities, for its review and comment, with a copy of such reports and statements and other documents to be filed by the ~~notice referred~~ Corporation pursuant to ~~in Rule 173(a~~Section 13, 14 or 15(d) of the ~~1933~~ Exchange Act ~~Regulations~~during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which TD Securities shall have reasonably objected in writing; and to promptly notify TD Securities of such filing; (e) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the U.S. Securities Act to be delivered (whether physically or through compliance with Rule 172 under the ~~1933~~ U.S. Securities Act or any similar rule) in connection with any sale of Debentures, which event ~~occurs as a result~~ could require the making of ~~which~~ any change in the ~~Pricing Disclosure Package or~~ U.S. Prospectus then being used so that the U.S. Prospectus ~~as then amended or supplemented~~ would not include an untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they ~~were~~ are made, not misleading, ~~or if~~ and to advise the Underwriters promptly if, during such period, it is shall become necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package or~~ U.S. Prospectus to cause the U.S. Prospectus to comply with the ~~1933~~ requirements of the U.S. Securities Act, ~~the Corporation promptly will~~ and, in each case, during such time, subject to Section 13.2(c) hereof, to prepare and ~~file with~~ furnish, at the ~~Commission an amendment~~Corporation’s expense, ~~supplement~~ to the Underwriters promptly such amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ such U.S. Prospectus as may be necessary to reflect any such change or ~~14 of the 1934 Act which will correct such statement or omission or which will~~ to effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof.; (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, ~~in each case as soon as practicable but not later than 60 days after the close~~ and to deliver to TD Securities, an earnings statement of the ~~period covered thereby, earnings statements~~ Corporation (~~in form complying with~~ which will satisfy the provisions of ~~Rule 158 under~~ Section 11(a) of the ~~1933 Act, which need not be certified by independent certified public accountants unless required by the 1933~~ U.S. Securities Act) covering ~~(i)~~ a ~~twelve-month~~ period of twelve months beginning ~~not later than the first day of the Corporation’s fiscal quarter next following~~ after the effective date of the Registration Statement ~~and~~ (iias defined in Rule 158(c) a under the U.S. Securities Act) as soon as is reasonably practicable after the termination of such twelve-month period ~~beginning~~ but in any case not later than ~~the first day~~ March 30, 2014; (g) to furnish to TD Securities copies of the ~~Corporation’s fiscal quarter next following~~ Registration Statement, as initially filed with the ~~date~~ SEC, and of ~~this Agreement.~~all amendments thereto (including all exhibits thereto) and sufficient copies of the foregoing, as may reasonably be requested (other than exhibits) for distribution of a copy to each of the other Underwriters; (h) ~~The Corporation will furnish~~ to ~~you~~comply with Rule 433(d) under the U.S. Securities Act (without reliance on Rule 164(b) under the U.S. Securities Act) and with Rule 433(g) under the U.S. Securities Act; and (i) not, ~~without charge~~at any time at or after the execution of this Agreement, ~~copies~~ to, directly or indirectly, offer or sell any Debentures by means of any “prospectus” (within the meaning of the ~~Registration Statement (four of which will include all exhibits other than those incorporated by reference~~U.S. Securities Act), or use any “prospectus” (within the ~~Pricing Disclosure Package and~~ meaning of the ~~Prospectus, and all amendments and supplements to such documents~~U.S. Securities Act) in connection with the offer or sale of the Debentures, in each case ~~as soon as available and in such quantities as you reasonably request~~other than the Final Prospectus or the U.S. Prospectus. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement (Atlantic Power Corp)

Covenants of the Corporation. The Corporation hereby covenants ~~and agrees with~~ to the ~~several Underwriters that~~Underwriter that the Corporation: (a) ~~The Corporation~~ will ~~cause any Preliminary~~ file the Final Prospectus and other documents required under the ~~Prospectus~~ applicable Securities Laws with the Securities Regulators on or before June 3, 2020, or such earlier or later date as agreed to ~~be filed pursuant to~~by the Corporation and the Underwriter, in writing, and ~~in compliance with~~obtain a receipt therefor; (b) will advise the Underwriter, ~~Rule 424(b)~~ promptly after receiving notice thereof, of the ~~1933 Act Regulations~~time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Underwriter of each such filing and copies of such receipts; (c) will advise the ~~Underwriters~~ Underwriter, promptly after receiving notice or obtaining knowledge thereof, of: (i) the suspension of the ~~filing~~ qualification of the Units or the Over-Allotment Option for offering, sale, issuance, or grant, as applicable, in any jurisdiction, or the issuance by any Canadian Securities Regulators of any ~~amendment~~ order suspending or ~~supplement to~~ preventing the ~~Registration Statement~~use of the Preliminary Prospectus, the Final Prospectus or any Supplementary Material; (ii) the institution, threatening or contemplation of any proceeding for any such purposes; (iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or (iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Preliminary Prospectus or the Final Prospectus ~~and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~or for additional information, and will use its ~~best~~ commercially reasonable efforts to prevent the issuance of any ~~such stop~~ order ~~and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice~~ referred to in ~~Rule 173(a~~(i) of above and, if any such order is issued, to obtain the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs~~ withdrawal thereof as ~~a result of which the Pricing Disclosure Package or the Prospectus~~ quickly as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.possible; (d) ~~Without~~ from and including the ~~prior consent~~ date of this Agreement through to and including the Option Closing Time, do all such acts and things necessary to ensure that the representations and warranties of the ~~Underwriters, the~~ Corporation ~~has not made and will not make~~ contained in this Agreement or any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus certificates or ~~a free writing prospectus that is not required to be filed~~ documents delivered by the Corporation pursuant to ~~Rule 433~~ this Agreement remain materially true and correct and not do any such act or thing that would render any representation or warrant of the ~~1933 Act Regulations;~~ Corporation contained in this Agreement or any ~~such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented~~ certificates or documents delivered by it pursuant to ~~by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated~~ this Agreement materially untrue or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.incorrect; (e) ~~The~~ except to the extent the Corporation ~~agrees to prepare~~ participates in a ~~term sheet specifying~~ merger or business combination transaction which the ~~terms~~ Corporation’s board of directors determines is in the best interest of the ~~Notes~~ Corporation and following which the Corporation is not ~~contained~~ a “reporting issuer”, will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in ~~any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf~~ default of the ~~Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b)~~ requirements of the ~~1933 Act Regulations prior~~ Securities Laws of each of the Qualifying Jurisdictions to the ~~close of business two business days after~~ date which is 48 months following the ~~date hereof.~~Closing Date; (f) ~~The~~ except to the extent the Corporation ~~agrees that if at any time following~~ participates in a merger or business combination transaction which the ~~issuance~~ Corporation’s board of ~~a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with~~ directors determines is in the ~~information (not superseded or modified as~~ best interest of the ~~Effective Date) in~~ Corporation and following which the ~~Registration Statement,~~ Corporation is not listed on the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleadingTSX, the Corporation will ~~give prompt notice thereof~~ use its commercially reasonable efforts to maintain the listing of the Common Shares on the TSX or such other recognized stock exchange or quotation system as the Underwriter may approve, acting reasonably, to the ~~Underwriters and, if requested by~~ date that is 48 months following the ~~Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus~~ Closing Date so long as the Corporation meets the minimum listing requirements of the TSX or such other ~~document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement~~ exchange or ~~omission.~~quotation system; (g) ~~The~~ during the distribution of the Units, the Corporation will ~~make generally available~~ consult with the Underwriter and promptly provide to ~~its security holders, in each case as soon as practicable but not later than 60 days after~~ the ~~close~~ Underwriter drafts of any press releases of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required Corporation for review by the ~~1933 Act) covering (i)~~ Underwriter and the Underwriter’s counsel prior to issuance, provided that any such review will be completed in a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement.timely manner; and (h) ~~The Corporation~~ will ~~furnish to you, without charge, copies of~~ use the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing net proceeds of the offering of Units contemplated herein in the ~~Notes, including, without limitation, expenses associated with~~ manner and subject to the ~~production~~ qualifications described in the Prospectus under the heading “Use of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Proceeds”.

Appears in 1 contract

Samples: Underwriting Agreement

Covenants of the Corporation. The Corporation covenants and agrees with the ~~several Underwriters that~~Underwriter as follows: (a) ~~The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ To advise the ~~Underwriters~~ Underwriter promptly ~~of the filing~~ of any amendment or supplement of the Registration Statement or the Prospectus which is proposed to be filed and not to effect such amendment or supplement in a form to which the Underwriter reasonably objects. (b) If requested, to furnish to the Underwriter and to the counsel for the Underwriter, one copy of the Registration Statement filed pursuant to XXXXX, including exhibits and Incorporated Documents, relating to the Equity Securities in the form it became effective and of all amendments thereto, including exhibits; and to each such firm and counsel, copies of each Preliminary Prospectus and Prospectus and any amendment or supplement thereto relating to the Purchased Securities. (c) As soon as it is advised thereof, to advise the Underwriter of (i) the initiation or threatening by the Commission of any proceedings for the issuance of any order suspending the effectiveness of the Registration Statement or suspending the use of the Prospectus, (ii) receipt by it or any representative or attorney of it of any other communication from the Commission relating to the Corporation, the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or (iii) suspension of qualification of the Purchased Securities for offering or sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Corporation will make every reasonable effort to prevent the issuance of an order suspending the effectiveness of the Registration Statement, or the use of the Prospectus, any Preliminary Prospectus or ~~the Prospectus and of the institution by the Commission of~~ any ~~stop order proceedings in respect of the Registration Statement~~Issuer Free Writing Prospectus, and ~~will use its best efforts to prevent the issuance of~~ if any such ~~stop~~ order ~~and~~ is issued, to obtain as soon as possible ~~its lifting, if issued~~the lifting thereof. (bd) ~~If at any time when a prospectus relating~~ To deliver to the ~~Notes (or the notice referred to in Rule 173(a)~~ Underwriter, without charge, as many conformed copies of the ~~1933 Act Regulations~~Registration Statement (excluding exhibits but including the Incorporated Documents), the Preliminary Prospectus, the Prospectus and each Issuer General Use Free Writing Prospectus and all amendments and supplements to such documents as the Underwriter may reasonably request. (e) During such period as a Prospectus is required by law to be delivered ~~under~~ by the ~~1933 Act~~ Underwriter or dealer, to deliver, without charge, to the Underwriter and dealers, at such office or offices as the Underwriter may designate, as many copies of the Prospectus and any amendment or supplement thereto as the Underwriter may reasonably request. (f) During the period in which copies of the Prospectus are to be delivered as provided in subsection (e) above, if any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material ~~fact,~~ fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is shall be necessary ~~at any time~~ during such same period to amend the ~~Pricing Disclosure Package~~ Registration Statement or amend or supplement the Prospectus to comply with the ~~1933 Act~~Securities Act or file any document which will be deemed an Incorporated Document in order to comply with the Exchange Act and the rules and regulations thereunder, forthwith to prepare, submit to the ~~Corporation promptly will prepare and~~ Underwriter, file with the Commission ~~an amendment~~and deliver, ~~supplement~~ without charge to the Underwriter either (i) amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ the Registration Statement or ~~14 of~~ Prospectus so that the ~~1934 Act which~~ statements in the Registration Statement or Prospectus, as so amended or supplemented, will ~~correct~~ not be misleading or (ii) such ~~statement~~ amendments, supplements or ~~omission or~~ documents which will effect such compliance. Delivery by the Underwriter of any such amendments or supplements to the Prospectus or documents shall not constitute a waiver of any of the conditions set forth in Section 6 hereof. (cg) ~~The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed~~ To retain in accordance with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Rules all Issuer Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is Prospectuses not required to be filed ~~by the Corporation~~ pursuant to ~~Rule 433 of~~ the ~~1933 Act Regulations~~Rules; ~~any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation~~ and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time ~~following~~ after the ~~issuance~~ date of ~~a Permitted Free Writing Prospectus~~ the Underwriting Agreement any ~~event occurs~~ events shall have occurred as a result of which ~~such Permitted~~ any Issuer Free Writing ~~Prospectus~~ Prospectus, as then amended or supplemented, would conflict with the information ~~(not superseded or modified as of the Effective Date)~~ in the Registration Statement, the ~~Pricing Disclosure Package~~ Preliminary 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~~prevailing at that subsequent time, not misleading, to notify the ~~Corporation will give prompt notice thereof~~ Underwriter and promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to ~~the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus~~ eliminate or ~~other document, the use of which has been consented to by the Underwriters, which will~~ correct such conflict, untrue statement or omission. (gh) ~~The Corporation will~~ To make generally available to ~~its~~ the Corporation’s security holders, ~~in each case~~ as soon as ~~practicable but not later than 60 days after the close of the period covered thereby~~practicable, an earnings ~~statements (in form complying with~~ statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably requestpromulgated thereunder. (i) ~~The Corporation will arrange or~~ To cooperate with the Underwriter in ~~arrangements~~ qualifying the Purchased Securities for ~~the qualification of the Notes for~~ offer and sale under the securities or “blue sky” laws of such jurisdictions as ~~you designate and will continue such qualifications~~ the Underwriter may reasonably request; provided that in ~~effect so long as required for the distribution; provided, however, that~~ no event shall the Corporation ~~shall not~~ be ~~required~~ obligated to qualify ~~as a foreign corporation or~~ to ~~file~~ do business in any ~~general consents~~ jurisdiction where it is not now so qualified, to take any action which would subject it to service of process ~~under~~ in suits, other than those arising out of the ~~laws~~ offering or sale of the Purchased Securities, in any ~~state~~ jurisdiction where it is not now so subject, to qualify in any jurisdiction as a broker-dealer or to subject itself to any taxing authority where it is not now so subject. (j) ~~The~~ During the period of five years from the date hereof, to supply to the Underwriter, copies of such financial statements and other periodic and special reports as the Corporation ~~will~~ may from time to time distribute generally to its lenders or to the holders of any class of its securities registered under Section 12 of the Exchange Act and to furnish to the Underwriter a copy of each annual or other report it shall be required to file with the Commission. (k) To pay all of its own expenses ~~incident to~~ incurred in connection with the performance of its obligations under this Agreement, and the Corporation will pay, or reimburse if paid by the Underwriter, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all reasonable costs and expenses incident to the performance of the obligations of the Corporation under this Agreement, including those relating to (i) the preparation, printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments exhibits thereto, ~~of any~~ each Preliminary Prospectus, of the Prospectus, of any ~~Permitted~~ Issuer Free Writing Prospectus and any amendments or supplements thereto, ~~(vi) any fees charged by independent rating agencies for rating~~ and the ~~Notes~~printing of this Agreement, (~~vii~~ii) ~~any fees~~ the preparation and ~~expenses in connection with the listing~~ delivery of the ~~Notes on~~ Purchased Securities to the ~~New York Stock Exchange~~Underwriter, ~~(viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x)~~ including the costs and expenses of any trustee, registrar, transfer agent and any agent thereof, including any reasonable fees and disbursements of counsel therefor, (iii) the ~~Corporation relating~~ registration or qualification of the Purchased Securities for offer and sale under the securities or “blue sky” laws of the various jurisdictions referred to ~~investor presentations~~ in subsection (i) above, including the reasonable fees and disbursements of counsel for the Underwriter in connection therewith and the preparation and printing of legal investment and preliminary and supplementary “blue sky” memoranda, (iv) the furnishing to the Underwriter of copies of the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements thereto, and of the several documents required by this Section to be so furnished, including costs of shipping and mailing, (v) the listing of the Purchased Securities on any securities exchange and (vi) the furnishing to the Underwriter of copies of all reports and information required by Section 7(j) above, including costs of shipping and mailing. (l) During the period beginning on the date of this Agreement and continuing to and including the date 90 days after the date of this Agreement, not to, directly or indirectly, (i) offer, pledge, sell or contract to sell any Equity Securities or any securities convertible into or exchangeable or exercisable for or repayable with Equity Securities (the “~~road show” undertaken in connection with~~ Lock-Up Securities”); (ii) sell any option or contract to purchase any Lock-Up Securities; (iii) purchase any option or contract to sell any Lock-Up Securities; (iv) grant any option, right or warrant for the ~~marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses~~ sale of any ~~consultants engaged~~ Lock-Up Securities; (v) otherwise dispose of or transfer any Lock-Up Securities; (vi) file a registration statement related to the Lock-Up Securities; or (vii) enter into any swap or other agreement that transfers, in ~~connection with~~ whole or in part, the ~~road show presentations with~~ economic consequence of ownership of any Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of Equity Securities or other securities, in cash or otherwise (other than (x) the ~~prior approval~~ issuance of securities pursuant to the Agreement and Plan of Merger dated October 16, 2011, by and among the Corporation, ~~travel~~ Sherpa Merger Sub, Inc., Sherpa Acquisition, LLC, El Paso Corporation, Sirius Holdings Merger Corporation and ~~lodging expenses~~ Sirius Merger Corporation or (y) pursuant to equity plans, programs or arrangements described in the Pricing Disclosure Package and the Prospectus existing on, or upon the conversion or exchange of convertible or exchangeable securities, or the exercise of warrants, outstanding as of, the date of this Agreement), without the prior written consent of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Kinder Morgan, Inc.)

Covenants of the Corporation. The Corporation covenants ~~and agrees~~ with ~~the several Underwriters that~~each Underwriter as follows: (a) ~~The Corporation will cause any Preliminary Prospectus~~ To furnish to RBC Dominion Securities Inc., CIBC World Markets Inc. and BMO Xxxxxxx Xxxxx Inc. in Toronto or as directed by RBC Dominion Securities Inc., CIBC World Markets Inc. and BMO Xxxxxxx Xxxxx Inc. without charge, prior to 10:00 a.m. Toronto time on the ~~Prospectus to be filed pursuant to~~business day next succeeding the date of this Agreement and during the period mentioned in Section 8(e) below, ~~and in compliance with, Rule 424(b)~~ as many copies of the ~~1933 Act Regulations,~~ Prospectuses and ~~advise the Underwriters promptly of the filing of~~ any ~~amendment~~ supplements and amendments thereto or ~~supplement~~ to the Registration ~~Statement, any Preliminary Prospectus or the Prospectus and~~ Statement as you may reasonably request. Each delivery of the ~~institution by~~ Prospectuses, will constitute the ~~Commission of any stop order proceedings in respect~~ additional representation and warranty of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating Corporation to the ~~Notes (or~~ Underwriters that, at the ~~notice referred to in Rule 173(a)~~ respective times of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Actdelivery, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. Prospectuses being delivered (ci) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has do not ~~made and will not make~~ contain any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in light of the circumstances ~~then prevailing~~under which they were made, not misleading, (ii) do not contain misrepresentation (within the meaning of applicable Canadian Securities Laws), and (iii) constitute full, true and plain disclosure of all material facts required to be disclosed by applicable law. (b) To prepare the Canadian Prospectus and the U.S. Prospectus in a form approved by you and (i) to file the Canadian Prospectus with the OSC and each of the other Canadian Securities Commissions in accordance with the Shelf Procedures not later than the OSC’s close of business on the business day following the execution and delivery of this Agreement and (ii) to file the U.S. Prospectus with the Commission pursuant to General Instruction II.L of Form F-10 under the Securities Act not later than the Commission’s close of business on the business day following the date of the execution and delivery of this Agreement; before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectuses, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object. (c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Corporation ~~will give prompt notice thereof~~ and not to use or refer to any proposed free writing prospectus to which you reasonably object. (d) Not to take any action that would result in an Underwriter or the ~~Underwriters and, if requested by~~ Corporation being required to file with the ~~Underwriters, will prepare and furnish without charge~~ Commission pursuant to ~~each Underwriter~~ Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (e) If at any time following the date of execution of this Agreement until the completion of the distribution of the Shares for purposes of Canadian Securities Laws and the Securities Act and the applicable rules and regulations of the Commission thereunder, to promptly inform the Underwriters in writing of the particulars of any actual, anticipated, threatened, or contemplated, material change, change in material fact, or other ~~document~~event or condition that could have been required to have been stated in the Prospectuses had that change, fact, event or condition arisen or been in effect on or prior to the ~~use~~ date of the Prospectuses, and is of such a nature as could render any Prospectus misleading in the light of the circumstances or could result in it containing a misrepresentation (within the meaning of applicable Canadian Securities Laws). (f) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the U.S. Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which ~~has been consented~~ it is necessary to by amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, ~~which~~ it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and the Canadian Securities Commissions and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will ~~correct such conflict~~not, ~~statement~~ in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or ~~omission~~so that the Time of Sale Prospectus, as so amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as so amended or supplemented, will comply with applicable law. (g) ~~The Corporation will make generally available to its security holders~~If, ~~in each case as soon as practicable but not later than 60 days~~ during such period after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first ~~day of the Corporation’s fiscal quarter next following the effective~~ date of the ~~Registration Statement and (ii) a twelve-month period beginning not later than the first day~~ public offering of the Shares as in the opinion of counsel for the Underwriters either of the Prospectuses (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectuses (or one of them) in order to make the statements therein, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectuses (or one of them) to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Corporation~~’s fiscal quarter next following~~ ) to which Shares may have been sold by you on behalf of the ~~date~~ Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectuses (or one of ~~this Agreement~~them) so that the statements in the Prospectuses as so amended or supplemented will not, in the light of the circumstances when the Prospectuses (or one of them) (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectuses, as so amended or supplemented, will comply with applicable law. (h) ~~The Corporation will furnish to you, without charge, copies~~ To comply with Section 57 of the ~~Registration Statement~~ Securities Act (~~four~~ Ontario) and with comparable provisions of ~~which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package~~ Canadian Securities Laws and the ~~Prospectus~~Securities Act and the rules and regulations of the SEC thereunder, and ~~all amendments~~ prepare and ~~supplements~~ file or deliver promptly at your request, any amendment or supplement to ~~such documents~~the Prospectuses, which, in your opinion may be necessary, to continue to qualify the Shares for distribution in each ~~case as soon as available~~ of the Canadian Qualifying Jurisdictions and ~~in such quantities as you reasonably request~~the United States. (i) ~~The Corporation will arrange or cooperate in arrangements for~~ To make generally available to the ~~qualification~~ Corporation’s security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the ~~Notes for sale under~~ Corporation occurring after the ~~laws~~ date of ~~such jurisdictions as you designate~~ this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and ~~will continue such qualifications in effect so long as required for~~ the ~~distribution; provided, however, that~~ rules and regulations of the ~~Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject~~Commission thereunder. (j) ~~The Corporation will~~ Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of ~~its~~ the Corporation’s obligations under this ~~Agreement including~~ Agreement, including: (i) the ~~printing~~ fees, disbursements and expenses of the Corporation’s counsel and the Corporation’s auditors in connection with the registration, qualification and delivery of the Shares under the Securities Act and Canadian Securities Laws and all other fees or expenses in connection with the preparation and filing of the Registration ~~Statement~~ Statement, the Preliminary Prospectuses, the Time of Sale Prospectus, the Prospectuses, any Marketing Materials, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Corporation and amendments and supplements to any of the foregoing, including all regulatory and stock exchange filing fees and the costs and charges of any transfer agent, registrar, custodian or depositary, all printing and translation costs associated therewith, and the mailing and delivering of ~~this Agreement~~ copies thereof to the Underwriters and ~~any Blue Sky Survey~~dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the ~~preparation~~ transfer and ~~printing~~ delivery of ~~certificates for~~ the ~~Notes~~Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) all costs and expenses incident to listing the ~~issuance~~ Shares on the NYSE and ~~delivery of~~ the ~~Notes as specified herein~~TSX, (iv) the ~~fees and disbursements~~ cost of ~~counsel for~~ printing certificates representing the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000Shares, (v) the document production charges and expenses associated with printing this Agreement, and (vi) all other costs and expenses incident to the performance of the obligations of the Corporation hereunder for which provision is not otherwise made in this Section. (k) To use its best efforts to have the Shares accepted for listing on the NYSE and the TSX and, through the period of distribution of the Shares, maintain the listing of the Shares on the NYSE and the TSX and to file with such exchanges all documents and notices required by such exchanges of issuers that have securities that are listed on such exchanges. (l) To use the net proceeds of the offering of Shares in the manner specified in each of the Time of Sale Prospectus and the Prospectuses and for no other purpose. (m) Not to directly or indirectly issue any common shares of the Corporation or securities or other financial instruments convertible into or having the right to acquire common shares of the Corporation (other than pursuant to rights or obligations under securities or instruments outstanding) or enter into any agreement or arrangement under which it transfers to another, in whole or in part, any of the economic consequences of ownership of common shares of the Corporation, whether that agreement or arrangement may be settled by the delivery of common shares of the Corporation or other securities or cash, or agree to become bound to do so, or disclose to the public any intention to do so, for a period from the date of execution of this Agreement until 90 days following the Closing Date without the prior written consent of RBC Dominion Securities Inc., CIBC World Markets Inc. and BMO Xxxxxxx Xxxxx Inc., which consent will not be unreasonably withheld; provided that nothing herein shall prevent or restrict the Corporation from issuing or agreeing to issue any of its common shares or securities or other financial instruments convertible into or having the right to acquire its common shares (i) as consideration in connection with acquisitions in an amount not to exceed US$350 million in the aggregate (calculated as of the time of the agreement to issue such common shares of the Corporation or securities or other financial instruments convertible into or having the right to acquire common shares of the Corporation), (ii) under any of the Corporation’s equity-based compensation plans, or (iii) pursuant to rights or obligations under securities or instruments outstanding on the date hereof or issued as permitted by (i) or (ii) above. (n) To use best efforts to procure that the officers and directors of the Corporation also agree in a separate agreement with the Underwriters, ~~in quantities as hereinabove referred to~~prior to the Closing Date, not to sell, or agree to sell (or announce any intention to do so), any of ~~copies~~ their common shares of the ~~Registration Statement~~ Corporation or securities exchangeable or convertible into common shares of the Corporation for a period of 90 days from the Closing Date without the prior written consent of RBC Dominion Securities Inc., CIBC World Markets Inc. and BMO Xxxxxxx Xxxxx Inc., which consent will not be unreasonably withheld; provided that nothing herein shall prevent or restrict any such officer or director from transferring common shares of the Corporation or securities or other financial instruments convertible into or having the right to acquire common shares of the Corporation to a registered charity or foundation with a charitable purpose (or disposing of such shares, securities or other financial instruments and donating the proceeds to such charity or foundation). (o) During the distribution of the Shares: (i) the Corporation shall prepare, in consultation with the Underwriters and their counsel, any “marketing materials” (as such term is defined in National Instrument 41-101 — General Prospectus Requirements) (“NI 41-101”) (“Marketing Materials”), including any template version thereof, to be provided to potential investors in the Shares, and approve in writing any such marketing materials (including any template version thereof), as may reasonably be requested by the Underwriters, such Marketing Materials to comply with Canadian Securities Laws and to be acceptable in form and substance to the Underwriters and their counsel, acting reasonably, (ii) RBC Dominion Securities Inc., CIBC World Markets Inc. and BMO Xxxxxxx Xxxxx Inc., shall, on behalf of the Underwriters, approve in writing any such Marketing Materials, as contemplated by the Canadian Securities Laws, prior to any Marketing Materials being provided to potential investors of Shares and/or filed with the Canadian Securities Commissions; and (iii) the Corporation shall: (A) file any such Marketing Materials (or any template version thereof) with the Canadian Securities Commissions as soon as reasonably practicable after such Marketing Materials are so approved in writing by the Corporation and RBC Dominion Securities Inc., CIBC World Markets Inc. and BMO Xxxxxxx Xxxxx Inc., on behalf of the Underwriters, and in any event on or before the day the Marketing Materials are first provided to any potential investor of Shares, and file any such Marketing Materials with the Commission pursuant to Rule 433(d) under the Securities Act on or before the day such Marketing Materials are first provided to any potential investor of the Shares, unless an exemption is available from such filing requirement and the conditions to the availability of such exemption are satisfied; and (B) remove or redact any comparables from any template version so filed, in compliance with the Shelf Procedures, prior to filing such template version with the Canadian Securities Commissions (but such comparables shall not be removed from the version filed with the Commission pursuant to Rule 433(d) under the Securities Act); provided that a complete template version containing such comparables and any ~~amendments thereto~~disclosure relating to the comparables, ~~of any Preliminary Prospectus~~if any, shall be delivered to the Canadian Securities Commissions in compliance with the Shelf Procedures by the Corporation, and a copy thereof provided to the Underwriters as soon as practicable following such filing. (p) The Corporation and each Underwriter, on a several basis, covenants and agrees that, during the distribution of the ~~Prospectus~~Shares, it will not provide any potential investor with any materials or information in relation to the distribution of ~~any Permitted Free Writing Prospectus~~ the Shares or the Corporation other than the Prospectuses and any amendments or supplements ~~thereto~~thereto in accordance with this Agreement, provided that: (viA) any ~~fees charged by independent rating agencies for rating the Notes,~~ such materials that constitute marketing materials have been approved and filed in accordance with Section 8(o); and (~~vii~~B) any ~~fees and expenses~~ such materials that constitute standard term sheets have been approved in ~~connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required~~ writing by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and ~~any such consultants~~RBC Dominion Securities Inc., CIBC World Markets Inc. and BMO Xxxxxxx Xxxxx Inc., on behalf of the Underwriters, and are provided in compliance with Canadian Securities Laws in each case only in the ~~cost~~ Canadian Qualifying Jurisdictions. (q) Notwithstanding Section 8(o) and 8(p), following the approval and filing of ~~any aircraft chartered~~ a template version of marketing materials in ~~connection~~ accordance with ~~the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).~~Section

Appears in 1 contract

Samples: Underwriting Agreement (FRANCO NEVADA Corp)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes~~ Debentures (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Debentures is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the ~~Notes~~ Debentures that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the ~~Notes~~ Debentures that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act ~~Regulations~~Regulations (“Rule 433”); any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein is called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a pricing term sheet specifying the terms of the ~~Notes~~ Debentures not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule ~~433(b) of the 1933 Act Regulations~~ 433 prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in ~~arrangements~~ arrangements, if necessary, for the qualification of the ~~Notes~~ Debentures for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the ~~Notes~~Debentures, (iii) the issuance and delivery of the ~~Notes~~ Debentures as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Debentures under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the ~~Notes~~Debentures, (vii) any fees and expenses in connection with the listing of the ~~Notes~~ Debentures on the New York Stock ~~Exchange~~Exchange (the “NYSE”), (viii) any filing fee required by the Financial Industry Regulatory Authority, Inc., (ix) the costs of any depository arrangements for the ~~Notes~~ Debentures with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the ~~Notes~~Debentures, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x). (k) The Corporation will use commercially reasonable efforts to effect the listing of the Debentures on the NYSE within 30 days of the Closing Date. (l) During the period beginning from the date of this Agreement and continuing to and including 30 days after the date hereof, the Corporation will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities of the Corporation which mature more than one year after the Closing Date and which are substantially similar to the Debentures. For the avoidance of doubt, the foregoing sentence shall not restrict the offer, sale, contract to sell or disposition by the Corporation of its PremierNotes and senior indebtedness.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. ~~The~~ In further consideration of the agreements of the Underwriters herein contained, the Corporation covenants ~~and agrees with the several Underwriters that~~as follows: (a) The Corporation will ~~cause any Preliminary~~ prepare the Final Prospectus in a form approved by the Underwriters and will file such Final Prospectus with the ~~Prospectus~~ Commission pursuant to ~~be filed pursuant to, and in compliance with,~~ the applicable subparagraph of Rule 424(b) or Rule 434 within the time period prescribed. The Corporation will notify the Underwriters immediately, and confirm the notice in writing, (i) if not effective at the time of execution of this Agreement, of the ~~1933 Act Regulations~~effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment), and ~~advise the Underwriters promptly~~ of the filing of the Final Prospectus pursuant to Rule 424(b) or Rule 434, (ii) of any request by the Commission for any amendment to the Registration Statement, or any amendment or supplement to the ~~Registration Statement, any Preliminary~~ Final Prospectus or ~~the Prospectus~~ for additional information, and (iii) of the ~~institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration ~~Statement~~Statement of the suspension of the qualification of the securities for offering or sale in any jurisdiction, ~~and~~ or of the initiation or threatening of any proceeding for such purpose. The Corporation will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any ~~such~~ stop order ~~and~~ or of any order suspending any such qualification and, if any such order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (b) ~~If at any time when a prospectus relating~~ The Corporation will deliver to the ~~Notes (or the notice referred to in Rule 173(a)~~ Underwriters such number of conformed copies of the ~~1933 Act Regulations~~Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Final Prospectus and exhibits thereto) as such Underwriters may reasonably request and copies of each Preliminary Final Prospectus, the Final Prospectus and any amendment or supplement to such Final Prospectus. (c) The Corporation will furnish to the Underwriters, from time to time during the period when the Final Prospectus is required to be delivered under the ~~1933~~ Securities Act, such number of copies of the Final Prospectus (as amended or supplemented, if applicable) as they may reasonably request for the purposes contemplated by the Securities Act or the Securities Act Regulations. (d) The Corporation will deliver to the Underwriters notice of its intention to prepare or file any amendment to the Registration Statement relating to the Securities (including any post-effective amendment) or any amendment or supplement to the Final Prospectus (other than documents deemed to be incorporated by reference into the Final Prospectus) which the Corporation proposes for use by the Underwriters in connection with the offering of the Securities and which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations, will furnish the Underwriters and counsel for the Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object. (e) If, during such period after the Closing Date and prior to the date on which the distribution of Securities by the Underwriters is completed, any event ~~occurs~~ shall occur as a result of which it is necessary, in the ~~Pricing Disclosure Package~~ opinion of the Corporation’s counsel, to amend or supplement the Final Prospectus (as then amended or ~~supplemented would include~~ supplemented) in order to ensure that the Final Prospectus does not contain an untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package or the~~ Final Prospectus to comply with ~~the 1933 Act~~law, the Corporation ~~promptly~~ will forthwith prepare and ~~file with~~ furnish, at the ~~Commission an amendment~~Corporation’s own expense, ~~supplement~~ to the Underwriters, either amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ the Final Prospectus so that the statements in the Final Prospectus as so amended or 14 supplemented will not, in the light of the ~~1934 Act~~ circumstances under which they were made, be misleading or so that the Final Prospectus will ~~correct such statement or omission or which will effect such compliance~~comply with law, as the case may be. (cf) The Corporation, during the period when ~~a prospectus relating to~~ the ~~Notes~~ Final Prospectus is required to be delivered under the ~~1933~~ Securities Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 13, 14 or 14 15 of the ~~1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating~~ Exchange Act subsequent to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omissionStatement becomes effective. (g) The Corporation will ~~make generally available~~ endeavor to ~~its security holders, in each case as soon as practicable but not later than 60 days after~~ qualify the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement Securities for offer and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the securities or blue sky laws of such jurisdictions as ~~you designate~~ any Underwriter shall reasonably request and ~~will continue~~ to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such ~~qualifications in effect so long as required for~~ qualification and the ~~distribution~~printing of any memoranda concerning the aforesaid qualification; provided, however, that the Corporation shall not be required to qualify ~~as a foreign corporation or~~ to ~~file~~ do business in any ~~general consents to service of process under the laws of any state~~ jurisdiction where it is not now so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where they are not now subject. (h) During the period beginning on the date hereof and continuing to and including the Closing Date, the Corporation will not offer, sell, contract to sell or otherwise dispose of (other than in an offering made exclusively outside the United States) any securities of the Corporation substantially similar to the Securities or any securities convertible into or exchangeable for the Securities without the prior written consent of the Underwriters, other than shares of its common stock pursuant to its stock option and other benefit plans or commitments existing prior to the date of this Agreement. (i) During the period when the Securities are outstanding, the Corporation will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act. (j) The Corporation will ~~pay all expenses incident~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the ~~performance of its obligations under this Agreement including (i) the printing and filing~~ effective date of the Registration ~~Statement and the printing of this Agreement and any Blue Sky Survey~~Statement, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments an earnings statement or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses statements of the Corporation ~~relating to investor presentations on any “road show” undertaken in connection with~~ (which need not be audited) which shall satisfy the ~~marketing~~ requirements of Section 11(a) of the ~~offering~~ Securities Act and Rule 158 of the ~~Notes, including, without limitation, expenses associated with the production of road show slides~~ Securities Act Regulations and ~~graphics, fees and expenses of any consultants engaged~~ will advise you in ~~connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any~~ writing when such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)statement has been so made available.

Appears in 1 contract

Samples: Underwriting Agreement (S&t Bancorp Inc)

Covenants of the Corporation. ~~The~~ In further consideration of the agreements of the Underwriters herein contained, the Corporation covenants ~~and agrees with the several Underwriters that~~as follows: (a) The Corporation will ~~cause any Preliminary~~ prepare the Final Prospectus in a form approved by the Underwriters and will file such Final Prospectus with the ~~Prospectus~~ Commission pursuant to ~~be filed pursuant to, and in compliance with,~~ the applicable subparagraph of Rule 424(b) or Rule 434 within the time period prescribed. The Corporation will notify the Underwriters immediately, and confirm the notice in writing, (i) if not effective at the time of execution of this Agreement, of the ~~1933 Act Regulations~~effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment), and ~~advise the Underwriters promptly~~ of the filing of the Final Prospectus pursuant to Rule 424(b) or Rule 434, (ii) of any request by the Commission for any amendment to the Registration Statement, or any amendment or supplement to the ~~Registration Statement, any Preliminary~~ Final Prospectus or ~~the Prospectus~~ for additional information, and (iii) of the ~~institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration ~~Statement~~Statement of the suspension of the qualification of the securities for offering or sale in any jurisdiction, ~~and~~ or of the initiation or threatening of any proceeding for such purpose. The Corporation will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any ~~such~~ stop order ~~and~~ or of any order suspending any such qualification and, if any such order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (b) ~~If at any time when a prospectus relating~~ The Corporation will deliver to the ~~Notes (or the notice referred to in Rule 173(a)~~ Underwriters such number of conformed copies of the ~~1933 Act Regulations~~Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Final Prospectus and exhibits thereto) as such Underwriters may reasonably request and copies of each Preliminary Final Prospectus, the Final Prospectus and any amendment or supplement to such Final Prospectus. (c) The Corporation will furnish to the Underwriters, from time to time during the period when the Final Prospectus is required to be delivered under the ~~1933~~ Securities Act, such number of copies of the Final Prospectus (as amended or supplemented, if applicable) as they may reasonably request for the purposes contemplated by the Securities Act or the Securities Act Regulations. (d) The Corporation will deliver to the Underwriters notice of its intention to prepare or file any amendment to the Registration Statement relating to the Debt Securities (including any post-effective amendment) or any amendment or supplement to the Final Prospectus (other than documents deemed to be incorporated by reference into the Final Prospectus) which the Corporation proposes for use by the Underwriters in connection with the offering of the Debt Securities and which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations, will furnish the Underwriters and counsel for the Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object. (e) If, during such period after the Closing Date and prior to the date on which the distribution of Debt Securities by the Underwriters is completed, any event ~~occurs~~ shall occur as a result of which it is necessary, in the ~~Pricing Disclosure Package~~ opinion of the Corporation’s counsel, to amend or supplement the Final Prospectus (as then amended or ~~supplemented would include~~ supplemented) in order to ensure that the Final Prospectus does not contain an untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package or the~~ Final Prospectus to comply with ~~the 1933 Act~~law, the Corporation ~~promptly~~ will forthwith prepare and ~~file with~~ furnish, at the ~~Commission an amendment~~Corporation’s own expense, ~~supplement~~ to the Underwriters, either amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ the Final Prospectus so that the statements in the Final Prospectus as so amended or 14 supplemented will not, in the light of the ~~1934 Act~~ circumstances under which they were made, be misleading or so that the Final Prospectus will ~~correct such statement or omission or which will effect such compliance~~comply with law, as the case may be. (cf) The Corporation, during the period when ~~a prospectus relating to~~ the ~~Notes~~ Final Prospectus is required to be delivered under the ~~1933~~ Securities Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 13, 14 or 14 15 of the ~~1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating~~ Exchange Act subsequent to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omissionStatement becomes effective. (g) The Corporation will ~~make generally available~~ endeavor to ~~its security holders, in each case as soon as practicable but not later than 60 days after~~ qualify the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement Debt Securities for offer and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the securities or blue sky laws of such jurisdictions as ~~you designate~~ any Underwriter shall reasonably request and ~~will continue~~ to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such ~~qualifications in effect so long as required for~~ qualification and the ~~distribution~~printing of any memoranda concerning the aforesaid qualification; provided, however, that the Corporation shall not be required to qualify ~~as a foreign corporation or~~ to ~~file~~ do business in any ~~general consents to service of process under the laws of any state~~ jurisdiction where it is not now so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where they are not now subject. (h) During the period beginning on the date hereof and continuing to and including the Closing Date, the Corporation will not offer, sell, contract to sell or otherwise dispose of (other than in an offering made exclusively outside the United States) any securities of the Corporation substantially similar to the Debt Securities or any securities convertible into or exchangeable for the Debt Securities without the prior written consent of the Underwriters. (i) During the period when the Debt Securities are outstanding, the Corporation will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act. (j) The Corporation will ~~pay all expenses incident~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the ~~performance of its obligations under this Agreement including (i) the printing and filing~~ effective date of the Registration ~~Statement and the printing of this Agreement and any Blue Sky Survey~~Statement, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments an earnings statement or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses statements of the Corporation ~~relating to investor presentations on any “road show” undertaken in connection with~~ (which need not be audited) which shall satisfy the ~~marketing~~ requirements of Section 11(a) of the ~~offering~~ Securities Act and Rule 158 of the ~~Notes, including, without limitation, expenses associated with the production of road show slides~~ Securities Act Regulations and ~~graphics, fees and expenses of any consultants engaged~~ will advise you in ~~connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any~~ writing when such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)statement has been so made available.

Appears in 1 contract

Samples: Underwriting Agreement (S&t Bancorp Inc)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will cause ~~any~~ the Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, ~~any~~ the Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes~~ Securities (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Securities is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a the Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a the Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act ~~Regulations~~Regulations (“Rule 433”); any such free writing prospectus (which shall include the pricing term sheet discussed in Section ~~5(e~~6(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B II hereto and herein is called a the “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat ~~each~~ the Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to ~~any~~ the Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a pricing term sheet specifying the terms of the ~~Notes~~ Shares not contained in ~~any~~ the Preliminary Prospectus, substantially in the form of Schedule C III hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule ~~433(b) of the 1933 Act Regulations~~ 433 prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a the Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the ~~effective date~~ Effective Date of the Registration Statement and (ii) a ~~twelve-~~twelve- month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you may reasonably request. (i) The Corporation will arrange or cooperate in ~~arrangements~~ arrangements, if necessary, for the qualification of the ~~Notes~~ Shares for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this ~~Agreement~~ Agreement, including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the ~~preparation~~ issuance of the Preferred Shares and ~~printing of certificates for the Notes, (iii)~~ the issuance and delivery of the ~~Notes~~ Shares, each as specified herein, (iii) any fees associated with the filing of the Certificate of Designations with the Secretary of State of the State of Delaware and the cost of preparing the Securities and the Depositary Receipts, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Securities under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~6(i) hereof and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of ~~any~~ the Preliminary Prospectus, of the Prospectus, of ~~any~~ the Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the ~~Notes~~Shares, (vii~~) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii~~) any filing fee required by the Financial Industry Regulatory Authority, Inc., (ixviii) the costs of any depository arrangements for the ~~Notes~~ Shares with DTC or any successor ~~depositary~~ depositary, (ix) any fees and expenses incurred in connection with the preparation and filing of the Registration Statement relating to the Securities and all expenses and application fees related to the listing of the Shares on the New York Stock Exchange and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the ~~Notes~~Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x). (k) The Corporation will, prior to the Time of Delivery, deposit the Preferred Stock with the Depositary in accordance with the provisions of the Deposit Agreement and otherwise comply with the Deposit Agreement so that Shares will be issued by the Depositary against receipt of such Preferred Stock and delivered to the Underwriters against payment therefor at the Time of Delivery. (l) During a period of 30 days from the date of the Prospectus, the Corporation will not, without the prior written consent of the Representatives, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer, dispose of, directly or indirectly, any shares of the Corporation’s securities that are substantially similar to the Shares or any securities convertible into or exercisable or exchangeable for Shares. (m) The Corporation will use its reasonable best efforts to effect the listing of the Shares on the New York Stock Exchange within 30 days of the Time of Delivery. (n) The Corporation will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Corporation to facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares to be issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Shares to be issued and sold pursuant to this Agreement other than the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. The Corporation covenants and agrees with the several ~~Underwriters~~ Underwriters, each Forward Purchaser and each Forward Seller that: (a) The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters and the Forward Sellers promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes~~ Shares (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Shares is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the ~~Underwriters~~Underwriters and the Forward Sellers, the Corporation has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each ~~Underwriter~~Underwriter and each Forward Seller, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act ~~Regulations~~Regulations (“Rule 433”); any such free writing ~~prospectus (which shall include the pricing term sheet discussed in Section 5(e) below)~~prospectus, the use of which has been consented to by the Corporation and the ~~Underwriters~~Underwriters and the Forward Sellers, is listed on Schedule B III hereto and herein is called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus or any electronic roadshow or other written communication that constitutes an offer to buy the Shares provided to investors by, or with the approval of, the Corporation, any event occurs as a result of which such Permitted Free Writing Prospectus or such electronic roadshow or other written communication would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and the Forward Sellers and, if requested by the ~~Underwriters~~Underwriters and the Forward Sellers, will prepare and furnish without charge to each Underwriter and each Forward Seller a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (gf) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (hg) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you may reasonably request. (ih) The Corporation will arrange or cooperate in ~~arrangements~~ arrangements, if necessary, for the qualification of the ~~Notes~~ Shares for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (ji) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement and the Forward Sale Agreements and the Additional Forward Sale Agreements, if any, including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the ~~Notes~~Shares, (iii) the issuance and delivery of the ~~Notes~~ Shares as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Shares under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~7(h) hereof and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees ~~charged by independent rating agencies for rating the Notes, (vii) any fees~~ and expenses in connection with the listing of the ~~Notes~~ Shares on the New York Stock Exchange, (~~viii~~vii) any filing fee required by the Financial Industry Regulatory Authority, Inc., (ixviii) the costs of any depository arrangements for the ~~Notes~~ Shares with DTC or any successor depositary and (xix) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the ~~Notes~~Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (xix). (j) During a period of 60 days from the date of the Prospectus, the Corporation will not, without the prior written consent of the Representatives, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer, dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares or enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Shares, whether any such swap or transaction is to be settled by delivery of Shares or other securities, in cash or otherwise; provided, however, that the foregoing shall not apply to any securities or options to purchase any securities granted or sold pursuant to any employee or director compensation plans of the Corporation or employee or other investment plans of the Corporation as in effect on the date of this Agreement. (k) The Corporation will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. Additionally, the Corporation will use its best efforts to list on the New York Stock Exchange, upon issuance by the Corporation, (i) the Corporation Shares to be issued and sold by the Corporation hereunder, if any, and (ii) the shares of Common Stock (if any) to be issued to the Forward Purchasers pursuant to the Forward Sale Agreements and the Additional Forward Sale Agreements, if any (whether pursuant to Physical Settlement, Net Share Settlement (as such terms are defined in the Forward Sale Agreements or the Additional Forward Sale Agreements, as applicable), the provisions of Section 9 (“Acceleration Events”) of the Forward Sale Agreements or the Additional Forward Sale Agreements, as applicable, or otherwise). (l) The Corporation will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Corporation to facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares to be issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Shares to be issued and sold pursuant to this Agreement other than the Underwriters and the Forward Sellers.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. The Corporation covenants and ~~agrees with the several Underwriters that~~agrees: (a) ~~The Corporation will cause any Preliminary Prospectus~~ To furnish promptly to each of you and ~~the Prospectus~~ to ~~be filed pursuant to, and in compliance with, Rule 424(b)~~ your counsel a signed copy of the ~~1933 Act Regulations,~~ Registration Statement as originally filed and ~~advise the Underwriters promptly of the filing of any~~ each amendment or supplement ~~to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~thereto, and ~~will use its best efforts to prevent~~ a copy of each Prospectus filed with the ~~issuance of any such stop order~~ Commission, including all supplements thereto and ~~to obtain as soon as possible its lifting, if issued~~all documents incorpo- 10 10 rated therein by reference and all consents and exhibits filed therewith. (b) ~~If at~~ To deliver promptly to each of you such number of the following documents as each of you may reasonably request: (i) conformed copies of the Registration Statement (excluding exhibits other than the computation of the ratio of earnings to fixed charges, the Indenture and this Agreement), (ii) the Basic Prospectus, each preliminary prospectus and the Prospectus and (iii) any ~~time when~~ documents incorporated by reference in the Prospectus. (c) If, during any period in which, in the opinion of your counsel, a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the ~~1933~~ Securities Act in respect of Notes being offered for sale by any of you, any event relating to or affecting the Corporation occurs as a result of which the ~~Pricing Disclosure Package or the~~ Prospectus ~~as then amended or supplemented~~ would include an untrue statement of a material ~~fact,~~ fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the ~~Pricing Disclosure Package or the~~ Prospectus to comply with the ~~1933 Act~~Securities Act (other than periodic reports under the Exchange Act that are timely filed), to notify each of you promptly to suspend solicitation of purchases of the Notes; and if the Corporation shall decide to amend or supplement the Registration Statement or the Prospectus, to promptly ~~will~~ advise each of you by telephone (with confirmation in writing) and to promptly prepare and timely file with the Commission an ~~amendment,~~ amendment or supplement ~~or an appropriate document pursuant to Section 13 or 14 of the 1934 Act~~ which will correct such statement or omission or an amendment which will effect such compliance~~. (c) The Corporation~~; provided, however, that if during the period ~~when~~ referred to above, in the case of a ~~prospectus relating~~ sale made pursuant to a Terms Agreement, the ~~Notes is required to be delivered under the 1933 Act, will~~ Corporation shall promptly prepare and timely file ~~all documents required to be filed~~ with the Commission ~~pursuant~~ any amendment or supplement to ~~Section 13~~ the Registration Statement or 14 any Prospectus that may, in the judgment of the ~~1934 Act~~Corporation or the Purchaser, be required by the Securities Act or requested by the Commission. (d) ~~Without~~ To timely file with the ~~prior consent of~~ Commission during the ~~Underwriters, the Corporation has not made~~ period referred to in (c) above all documents (and ~~will not make~~ any ~~offer relating~~ amendments to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not previously filed documents) required to be filed by the Corporation pursuant to ~~Rule 433~~ Section 13(a), 13(c), 14 or 15(d) of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keepingExchange Act. (e) ~~The Corporation agrees~~ of or supplement to ~~prepare~~ any such incorporated document, to furnish a ~~term sheet specifying the terms~~ copy thereof to each of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereofyou. (f) ~~The Corporation agrees that if at~~ During the period referred to in (c) above, to advise each of you (i) when any ~~time following~~ post-effective amendment to the ~~issuance~~ Registration Statement relating to or covering the Notes becomes effective, (ii) of ~~a Permitted Free Writing Prospectus~~ any ~~event occurs as a result of which such Permitted Free Writing Prospectus would conflict with~~ demand by the ~~information (not superseded~~ Commission for an amendment or ~~modified as of the Effective Date) in~~ supplement to the Registration Statement, to the ~~Pricing Disclosure Package~~ Prospectus, to any document incorporated by reference in any of the foregoing or for any additional information (other than any demand for an amendment or supplement to or additional information concerning documents hereafter filed with the Commission pursuant to the Exchange Act and incorporated by reference in the Registration Statement and Prospectus, where the failure to comply with such request would not cause the Registration Statement or the ~~Prospectus~~ Prospectus, as then supplemented or ~~would include an~~ amended, to fail to comply in any material respect with the provisions of the Securities Act and the applicable Rules or to contain 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~~therein not misleading), ~~in light~~ (iii) of the ~~circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested~~ issuance by the ~~Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document,~~ Commission of any stop order suspending the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date effectiveness of the Registration Statement ~~and~~ or any part thereof or any order directed to the Prospectus or any document incorporated therein by reference or the initiation or threat of any stop order proceeding, (iiiv) ~~a twelve-month period beginning not later than~~ of receipt by the ~~first day~~ Corporation of any notification with respect to the ~~Corporation’s fiscal quarter next following the date~~ suspension of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose and (v) of the happening of any event relating to or affecting the Corporation which makes untrue any statement of a material fact made in the Registration Statement or the Prospectus or which requires the making of a change in the Registration Statement or the Prospectus in order to make any material statement therein not misleading. (g) If, during the period referred to in (c) above, the Commission shall issue a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort to obtain the lifting of that order at the earliest possible time. (h) (including, at the option of the Corporation, Rule 158 of the Rules). (i) So long as any of the Notes are outstanding (including by way of resale by a Purchaser of Notes), to furnish to each of you, not later than the time the Corporation makes the same available to others, copies of all public reports or press releases (i) sent by the Corporation over the P.R. Newswire, (ii) furnished by the Corporation to any securities exchange on which the Notes are listed pursuant to requirements of or agreements with such exchange or (iii) filed with the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder. (j) To endeavor, in cooperation with each of you, to qualify the Notes for offering and sale under the securities laws of such jurisdictions as each of you ~~designate~~ may designate, and ~~will continue~~ to maintain such qualifications in effect so for as long as may be required for the ~~distribution~~distribution of the Notes, and to file such statements and reports as may be required by the laws of each jurisdiction in which the Notes have been qualified as above provided; provided, however, that the Corporation shall not be required to register or qualify as a foreign corporation nor, except as to matters and transactions relating to the offer or ~~to file~~ sale of the Notes, take any ~~general consents~~ action which would subject it to service of process ~~under the laws of~~ generally in any ~~state where it is not now so subject~~jurisdiction. (jk) ~~The~~ During the period, if any, specified (whether orally or in writing) in any Terms Agreement, the Corporation ~~will pay all expenses incident to~~ shall not, without the ~~performance of its obligations under this Agreement including (i) the printing and filing~~ prior consent of the ~~Registration Statement and~~ Purchaser thereunder, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the ~~printing of this Agreement and~~ offering of, any ~~Blue Sky Survey,~~ debt securities issued or guaranteed by the Corporation (~~ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of~~ other than the Notes ~~as specified herein~~being sold pursuant to such Terms Agreement, ~~(iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes~~ borrowings under the Corporation's revolving credit agreements and lines of credit, the private placement of securities ~~laws of any jurisdiction in accordance with the provisions of Section 5(i)~~ and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval issuances of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x's commercial paper).

Appears in 1 contract

Samples: Agency Agreement (Air Products & Chemicals Inc /De/)

Covenants of the Corporation. 13.1 The Corporation covenants and agrees with the ~~several~~ Underwriters ~~that~~that it: (a) ~~The Corporation~~ will ~~cause any Preliminary~~ advise the Underwriters, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplemental Material has been filed and receipts have been obtained and will provide evidence satisfactory to the ~~Prospectus to be filed pursuant to~~Underwriters of each filing and the issuance of receipts; (b) will advise the Underwriters, ~~and in compliance with~~promptly after receiving notice or obtaining knowledge of: (i) the issuance by any Securities Commission, ~~Rule 424(b)~~ the TSX, the NYSE, the SEC or any other competent authority of any order suspending or preventing the use of any of the ~~1933 Act Regulations, and advise the Underwriters promptly~~ Offering Documents or trading of any securities of the ~~filing~~ Corporation; (ii) the suspension of the qualification of the Offered Securities for offering or sale in any of the Qualifying Jurisdictions; and (iii) the institution, threatening or contemplation of any ~~amendment or supplement to the Registration Statement,~~ proceeding for any ~~Preliminary Prospectus or the Prospectus and~~ of ~~the institution by the Commission of any stop order proceedings in respect of the Registration Statement,~~ those purposes; and will use its ~~best~~ reasonable commercial efforts to prevent the issuance of any such ~~stop~~ order ~~and~~ and, if any such order is issued, to obtain the withdrawal of the order promptly; (c) will advise the Underwriters, promptly after receiving notice of or obtaining knowledge of any request made by any Securities Commission or the SEC to amend or supplement any of the Offering Documents or provide any additional information; (d) will apply the net proceeds from the issue and sale of the Offered Securities in accordance with the disclosure set out under the heading “Use of Proceeds” in the Preliminary Prospectus, the Amended Preliminary Prospectus and the Final Prospectus; (e) will not, without prior consultation with BMO Capital Markets on behalf of the Underwriters, during the period commencing on the date hereof and expiring on the completion of the distribution to the public of the Offered Securities, issue any press release; and (f) will make available management personnel of the Corporation to provide such assistance in marketing the Offering as ~~soon~~ the Underwriters may reasonably request. 13.2 The Corporation further covenants and agrees with the Underwriters: (a) in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the U.S. Securities Act or any similar rule), in connection with the sale of the Debentures, a prospectus after the nine-month period referred to in Section 10(a)(3) of the U.S. Securities Act, to prepare, at the Corporation’s expense, promptly upon request such amendment or amendments to the Registration Statement and the U.S. Prospectus as ~~possible its lifting, if issued.~~may be necessary to permit compliance with the requirements of Section 10(a)(3) of the U.S. Securities Act; (b) If if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the U.S. Securities Act, to be filed with the SEC and become effective before the Debentures may be sold, the Corporation will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the U.S. Securities Act, as soon as possible; and the Corporation will advise BMO Capital Markets promptly and, if requested by BMO Capital Markets, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A under the U.S. Securities Act is used, when the U.S. Prospectus is filed with the SEC pursuant to Rule 424(b) under the U.S. Securities Act (which the Corporation agrees to file in a timely manner in accordance with such rules); (c) to advise BMO Capital Markets promptly, confirming such advice in writing, of any request by the SEC for amendments or supplements to the Registration Statement, any U.S. Preliminary Prospectus, the U.S. Prospectus or any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement and, if the SEC should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise BMO Capital Markets promptly of any proposal to amend or supplement the Registration Statement, any U.S. Preliminary Prospectus or the U.S. Prospectus, and to provide BMO Capital Markets and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time ~~when~~ prior to any proposed filing and to file no such amendment or supplement to which BMO Capital Markets shall object in writing; (d) subject to Section 13.2(c) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Corporation with the SEC in order to comply with the Exchange Act for so long as a prospectus ~~relating~~ is required by the U.S. Securities Act to be delivered (whether physically or through compliance with Rule 172 under the ~~Notes (~~U.S. Securities Act or any similar rule) in connection with any sale of Debentures; and to provide BMO Capital Markets, for its review and comment, with a copy of such reports and statements and other documents to be filed by the ~~notice referred~~ Corporation pursuant to ~~in Rule 173(a~~Section 13, 14 or 15(d) of the ~~1933~~ Exchange Act ~~Regulations~~during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which BMO Capital Markets shall have objected in writing; and to promptly notify BMO Capital Markets of such filing; (e) to advise the Underwriters promptly of the happening of any event within the period during which a prospectus is required by the U.S. Securities Act to be delivered (whether physically or through compliance with Rule 172 under the ~~1933~~ U.S. Securities Act or any similar rule) in connection with any sale of Debentures, which event ~~occurs as a result~~ could require the making of ~~which~~ any change in the ~~Pricing Disclosure Package or~~ U.S. Prospectus then being used so that the U.S. Prospectus ~~as then amended or supplemented~~ would not include an untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they ~~were~~ are made, not misleading, ~~or if~~ and to advise the Underwriters promptly if, during such period, it is shall become necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package or~~ U.S. Prospectus to cause the U.S. Prospectus to comply with the ~~1933~~ requirements of the U.S. Securities Act, ~~the Corporation promptly will~~ and, in each case, during such time, subject to Section 13.2(c) hereof, to prepare and ~~file with~~ furnish, at the ~~Commission an amendment~~Corporation’s expense, ~~supplement~~ to the Underwriters promptly such amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ such U.S. Prospectus as may be necessary to reflect any such change or ~~14 of the 1934 Act which will correct such statement or omission or which will~~ to effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof.; (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, ~~in each case as soon as practicable but not later than 60 days after the close~~ and to deliver to BMO Capital Markets, an earnings statement of the ~~period covered thereby, earnings statements~~ Corporation (~~in form complying with~~ which will satisfy the provisions of ~~Rule 158 under~~ Section 11(a) of the ~~1933 Act, which need not be certified by independent certified public accountants unless required by the 1933~~ U.S. Securities Act) covering ~~(i)~~ a ~~twelve-month~~ period of twelve months beginning ~~not later than the first day of the Corporation’s fiscal quarter next following~~ after the effective date of the Registration Statement ~~and~~ (iias defined in Rule 158(c) a under the U.S. Securities Act) as soon as is reasonably practicable after the termination of such twelve-month period ~~beginning~~ but in any case not later than ~~the first day~~ March 30, 2012; (g) to furnish to BMO Capital Markets copies of the ~~Corporation’s fiscal quarter next following~~ Registration Statement, as initially filed with the ~~date~~ SEC, and of ~~this Agreement.~~all amendments thereto (including all exhibits thereto) and sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters; (h) ~~The Corporation will furnish~~ to ~~you~~comply with Rule 433(d) under the U.S. Securities Act (without reliance on Rule 164(b) under the U.S. Securities Act) and with Rule 433(g) under the U.S. Securities Act; and (i) not, ~~without charge~~at any time at or after the execution of this Agreement, ~~copies~~ to, directly or indirectly, offer or sell any Debentures by means of any “prospectus” (within the meaning of the ~~Registration Statement (four of which will include all exhibits other than those incorporated by reference~~U.S. Securities Act), or use any “prospectus” (within the ~~Pricing Disclosure Package and~~ meaning of the ~~Prospectus, and all amendments and supplements to such documents~~U.S. Securities Act) in connection with the offer or sale of the Debentures, in each case ~~as soon as available and in such quantities as you reasonably request~~other than the Final Prospectus or the U.S. Prospectus. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement (Atlantic Power Corp)

Covenants of the Corporation. 5.1 The Corporation hereby covenants to the Agent and ~~agrees with~~ the ~~several Underwriters that~~Purchasers (and confirms, for greater certainty, that the Purchasers, in addition to the Agent, shall have the benefit of such covenants as if they had been made directly to the Purchasers), that the Corporation: (a) ~~The Corporation~~ will ~~cause any Preliminary Prospectus~~ take all steps as may be reasonably necessary to enable the Units, the Common Shares and the ~~Prospectus~~ Warrants to be ~~filed pursuant to~~sold on a private placement basis in the Qualifying Jurisdictions y way of exemptions from the prospectus filing requirements of Applicable Securities Laws and otherwise fulfill all legal requirements required to be fulfilled by the Corporation (including, without limitation, compliance with all Applicable Securities Laws) in connection with the Offering; (b) subject to Exchange approval, undertakes to either (i) file with the SEC a registration statement on Form S 1 (the "Registration Statement") registering for resale the Common Shares issued in the Offering and the Warrant Shares, and ~~in compliance with, Rule 424(b~~to further use commercially reasonable efforts to cause such Registration Statement to be declared effective under the U.S. Securities Act by the SEC no later than the date that is four months and one day following the Closing Date and to remain effective and available for use until the date that is twelve months following the Closing Date (the "Registration Period") or (ii) effect a reorganization of the ~~1933~~ Corporation on or before the date that is four months and one day after the Closing Date with the purpose of causing the Corporation to qualify as a "foreign private issuer" within the meaning of Rule 405 under the U.S. Securities Act ~~Regulations~~and resulting in the removal of resale restrictions from the Common Shares issued in the Offering and Warrant Shares for non affiliates of the Corporation under United States securities laws, provided however, that if the Corporation fails, within the Registration Period, either to file and cause to become and remain effective and available for use a Registration Statement or effect a reorganization, in each case as provided above, Purchasers of the Units under this Offering will be entitled to receive as a penalty (the "Penalty") and as the sole remedy for failure to file or cause to remain effective the Registration Statement or complete a reorganization as provided herein, and ~~advise~~ for no additional consideration, 0.1 of a Common Share for each Unit issued pursuant to the ~~Underwriters promptly~~ Offering which such Purchaser then continues to hold and has not otherwise resold or transferred, and, provided further, the Penalty shall not be payable by the Corporation if after the Corporation has filed and caused to become effective a Registration Statement within the Registration Period and such Registration Statement then ceases for any reason (including without limitation by reason of a stop order, or the ~~filing of any amendment or supplement~~ Corporation's failure to update the Registration Statement), ~~any Preliminary Prospectus~~ to be effective or available for use by the ~~Prospectus and~~ Purchasers of the ~~institution~~ Common Shares and Warrants Shares (the "Default Event") and either: (i) the Corporation has within 30 days of the Default Event notified the Purchasers that the Registration Statement is effective and available for use, or (ii) at the time of such failure and for the entire duration of such failure, the Common Shares and Warrant Shares may be sold by such Purchaser on the ~~Commission of~~ Exchange without registration pursuant to Rule 144 under the U.S. Securities Act. It is understood that the Agent shall not be entitled to the Penalty or any ~~stop order proceedings in~~ other remedy with respect to the Agent's Compensation Shares. (c) shall, prior to the filing of the Registration Statement, ~~and~~ or any related prospectus or any amendment or supplement thereto furnish to the Agent copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will ~~use its best efforts~~ be subject to ~~prevent~~ the ~~issuance~~ review of ~~any such stop order and to obtain as soon as possible its lifting, if issued.~~the Agent; (bd) ~~If at any time when a~~ shall notify the Agent (which notice shall be accompanied by an instruction to suspend the use of the prospectus ~~relating to~~ until the ~~Notes~~ requisite changes have been made) as promptly as reasonably possible and confirm such notice in writing (~~or the notice referred to in Rule 173(a~~i) of the ~~1933 Act Regulations~~issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Common Shares or Warrant Shares, or the initiation of any proceedings for that purpose, (ii) ~~is required~~ of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration Statement or prospectus or any document incorporated or deemed to be ~~delivered under~~ incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement, prospectus or other documents so that, in the ~~1933 Act any event occurs as~~ case of a ~~result of which the Pricing Disclosure Package~~ Registration Statement or the ~~Prospectus~~ prospectus, as ~~then amended or supplemented would include an~~ the case may be, it will not contain any untrue statement of a material ~~fact,~~ 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 under which they were made, not misleading, and (iii) of the occurrence or ~~if it~~ existence of any pending corporate development with respect to the Corporation that the Corporation believes may be material or that there is ~~necessary at any time to amend the Pricing Disclosure Package~~ an occurrence or the ~~Prospectus~~ existence of any facts or circumstances that cause the Corporation to ~~comply~~ believe that the prospectus in not in material compliance with Section 10 of the ~~1933~~ U.S. Securities Act, ~~the Corporation promptly will prepare~~ and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, ~~without~~ in the ~~prior consent~~ determination of the Corporation, makes it ~~has~~ not ~~made and will not make~~ in the best interest of the Corporation to allow continued availability of a Registration Statement or prospectus, provided however, in no event shall any ~~offer relating to the Notes that~~ such notice contain any information which would constitute ~~a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations~~material, ~~other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by~~ non public information regarding the Corporation ~~pursuant to Rule 433~~ or any of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.its Material Subsidiaries; (e) ~~The Corporation agrees~~ will use its commercially reasonable efforts to ~~prepare~~ avoid the issuance of, or, if issued, obtain the withdrawal of any order stopping or suspending the effectiveness of a ~~term sheet specifying~~ Registration Statement during the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof.Registration Period; (f) ~~The Corporation agrees that if at any time following~~ shall upon the ~~issuance~~ occurrence of ~~a Permitted Free Writing Prospectus~~ any event ~~occurs~~ contemplated by Section 5.1(d), as ~~a result~~ promptly as reasonably possible under the circumstances taking into account the Corporation's good faith assessment of ~~which such Permitted Free Writing Prospectus would conflict with~~ any adverse consequences to the ~~information (not superseded or modified as~~ Corporation and its stockholders of the ~~Effective Date) in~~ premature disclosure of such event, prepare a supplement or amendment, including a post effective amendment, to a Registration Statement or a supplement to the related prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither a Registration ~~Statement, the Pricing Disclosure Package or the Prospectus or would include~~ Statement nor such prospectus will contain an 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 light of the circumstances ~~then prevailing~~under which they were made, not misleading, . If the Corporation ~~will give prompt notice thereof~~ notifies the Agent in accordance with Section 5.1(d) above to ~~the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document,~~ suspend the use of ~~which has~~ any prospectus until the requisite changes to such prospectus have been ~~consented~~ made, then the Purchasers shall suspend use of such prospectus. The Corporation will use its commercially reasonable efforts to by ensure that the ~~Underwriters, which will correct such conflict, statement or omission.~~use of the prospectus may be resumed as promptly as is practicable; (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement all fees and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of ~~its obligations~~ or compliance with Section 5.1(b) through (f) above by the Corporation shall be borne by the Corporation; (h) shall indemnify and hold harmless each Purchaser, the officers, directors, members, partners, agents, brokers, investment advisors and employees of each of them, each person who controls any such Purchaser (within the meaning of Section 15 of the U.S. Securities Act or Section 20 of the Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees of each such controlling person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any related prospectus or in any amendment or supplement thereto or in any related preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under ~~this Agreement including~~ which they were made) not misleading, except to the extent, but only to the extent, that (i) such untrue statements or omissions are based solely upon information regarding such Purchaser furnished in writing to the ~~printing~~ Corporation by such Purchaser expressly for use therein, or to the extent that such information relates to such Purchaser or such Purchaser's proposed method of distribution of Common Shares, Warrant Shares and ~~filing~~ Agent's Compensation Shares and was reviewed and expressly approved in writing by such Purchaser expressly for use in a Registration Statement, such prospectus or in any amendment or supplement thereto or (ii) in the case of an occurrence of an event of the ~~Registration Statement~~ type specified in Section 5.1(d), the use by such Purchaser of an outdated, defective or otherwise unavailable prospectus after the Corporation has notified the Agent in writing that the prospectus is outdated, defective or otherwise unavailable for use by the Purchasers. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified person and shall survive the transfer of any Common Shares, Warrant Shares and Agent's Compensation Shares by any of the Purchasers; (i) will use its commercially reasonable best efforts to obtain the necessary regulatory consents from the Exchange to (i) list and post for trading the Common Shares on the Exchange and become a reporting issuer in at least one Province in Canada as soon as possible after the Closing Date, and (ii) list the Common Shares comprising a portion of the Units, the Warrant Shares issuable upon exercise of the Warrants and the ~~printing~~ Agent's Compensation Shares issuable upon exercise of the Agent's Compensation Options on the Exchange as soon as possible after the Closing Date; (j) shall, for the period beginning upon the listing of the Common Shares on the Exchange until the date that is 24 months after the Closing Date, use its commercially reasonable best efforts to maintain the listing of the Common Shares on the Exchange, subject to the discretion of the board of directors of the Corporation to take such action as it deems to be in the best interest of the Corporation and other than in connection with a take over bid, amalgamation or other business combination transaction (whether by way of merger, plan of arrangement, consolidation, asset acquisition or disposition or other transaction) completed in accordance with applicable legislation, and the Corporation shall comply, in all material respects, with the rules and regulations thereof; (k) will not, directly or indirectly, for a period of 180 days following the Closing Date, without the prior written consent of GMP, such consent not to be unreasonably withheld, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or agree to or announce any intention to, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, any additional Common Shares or any securities convertible or exchangeable into Common Shares, other than pursuant to (i) this ~~Agreement and any Blue Sky Survey,~~ Agreement; (ii) the ~~preparation~~ grant or exercise of stock options and ~~printing of certificates for~~ other similar issuances pursuant to any stock option plan or similar share compensation arrangements in place prior to the ~~Notes,~~ Closing Date; (iii) the issuance ~~and delivery~~ of Common Shares upon the ~~Notes as specified herein~~exercise of convertible securities, warrants, options, or any other commitment or agreements outstanding on or prior to the Closing Date or (iv) any acquisition carried out by the Corporation determined by the board of directors of the Corporation to be in the best interest of the Corporation; (l) within the time periods required under Applicable Securities Laws, shall file all such documents with the applicable Regulatory Authority and the Exchange and pay all such fees ~~and disbursements~~ as may be required thereunder in respect of ~~counsel for~~ the ~~Underwriters~~ Offering provided that under no circumstances shall the Corporation be required to register any of the Units or Warrant Shares or any of the other securities issuable in connection with the ~~qualification~~ Offering, under the U.S. Securities Act or any state securities laws; (m) intends to use the net proceeds from the Offering to fund exploration and development activity related to the Corporation's Mineral Interests and for working capital and general corporate purposes; (n) from and including the date of this Agreement through to and including the Time of Closing, will do all such acts and things necessary to ensure that all of the ~~Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i)~~ representations and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses wan anties of the Corporation ~~relating~~ contained in this Agreement or any certificates or documents delivered by it pursuant to ~~investor presentations on any “road show” undertaken in connection~~ this Agreement remain true and correct; (o) will deliver to the Agent and to their legal counsel a copy of all letters, submissions and other materials with respect to the Offering filed with the ~~marketing~~ Regulatory Authorities, or any one of them, shortly following the time that the materials are filed with the Regulatory Authorities; and (p) the Corporation shall use its reasonable commercial efforts to fulfill or cause to be fulfilled, at or prior to the Closing Date, each of the ~~offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged~~ conditions set out in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Section 6.

Appears in 1 contract

Samples: Agency Agreement (Gentor Resources, Inc.)

Covenants of the Corporation. (1) The Corporation covenants and agrees with the ~~several Underwriters~~ Underwriter, and acknowledges that it is relying on such covenants in connection with the purchase of the Offered Units, that: (a) ~~The Corporation~~ it will ~~cause any~~ advise the Underwriter, promptly after receiving notice thereof, of the time when the Preliminary Prospectus, Final Prospectus and any Supplementary Material have been filed and receipts therefor have been obtained and will provide evidence satisfactory to the ~~Prospectus to be filed pursuant to~~Underwriter of each filing and the issuance of receipts; (b) it will advise the Underwriter, ~~and in compliance with~~promptly after receiving notice or obtaining knowledge, ~~Rule 424(b~~of: (i) the issuance by any Regulatory Authority of any order suspending or preventing the use of the ~~1933 Act Regulations~~Preliminary Prospectus, ~~and advise~~ the ~~Underwriters promptly~~ Final Prospectus or any Prospectus Amendment; (ii) the suspension of the ~~filing~~ qualification of the Offered Units for distribution or sale in any of the Qualifying Jurisdictions; (iii) the institution or threatening of any ~~amendment~~ proceeding for any of those foregoing purposes; or ~~supplement to~~ (iv) any requests made by any Securities Commission for amending or supplementing the ~~Registration Statement~~Prospectus, ~~any Preliminary Prospectus~~ or ~~the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~for additional information, and will use its commercially reasonable best efforts to prevent the issuance of any such ~~stop~~ order ~~and~~ and, if any such order is issued, to obtain ~~as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to~~ the ~~Notes (or the notice referred to in Rule 173(a)~~ withdrawal of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.order promptly; (c) ~~The Corporation~~the Corporation will use its reasonable commercial efforts to promptly do, ~~during the period when a prospectus relating to the Notes is required~~ make, execute, deliver or cause to be ~~delivered under~~ done, made, executed or delivered, all such acts, documents and things as the ~~1933 Act, will timely file~~ Underwriter may reasonably require from time to time for the purpose of giving effect to this Agreement and the transactions contemplated by the Final Prospectus (including the Listing) and take all ~~documents required~~ such steps as may be reasonably within its power to ~~be filed with~~ implement to their full extent the ~~Commission pursuant to Section 13 or 14~~ provisions of this Agreement and the ~~1934 Act.~~transactions contemplated by the Final Prospectus; and (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will ~~give prompt notice thereof~~ use its reasonable commercial efforts to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with maintain the listing of the ~~Notes~~ Common Shares and Warrants on the ~~New York Stock Exchange~~CSE or such other recognized stock exchange or quotation system as the Underwriter may approve, ~~(viii)~~ acting reasonably, for as long as any ~~filing fee required by~~ Unit Warrants and/or Broker Warrants remain outstanding, other than in a business combination or similar transaction where all the ~~Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses~~ outstanding securities of the Corporation ~~relating to investor presentations on~~ have been exchanged for cash or the securities of another issuer under any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)applicable Laws.

Appears in 1 contract

Samples: Underwriting Agreement

Covenants of the Corporation. The Corporation covenants and agrees with the several ~~Underwriters~~ Underwriters, the Forward Purchaser and the Forward Seller that: (a) The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the ~~Underwriters~~ Underwriters, the Forward Purchaser and the Forward Seller promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes~~ Shares (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. The Corporation will advise the Underwriters, the Forward Purchaser and the Forward Seller promptly of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or any proceedings pursuant to Section 8A of the 1933 Act, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Shares is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Forward Purchaser and the Forward Seller, the Corporation has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, the Forward Purchaser and the Forward Seller, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act ~~Regulations~~Regulations (“Rule 433”); any such free writing ~~prospectus (which shall include the pricing term sheet discussed in Section 5(e) below)~~prospectus, the use of which has been consented to by the Corporation and the Underwriters, the Forward Purchaser and the Forward Seller, is listed on Schedule B III hereto and herein is called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus or any electronic roadshow or other written communication that constitutes an offer to buy the Shares provided to investors by, or with the approval of, the Corporation, any event occurs as a result of which such Permitted Free Writing Prospectus or such electronic roadshow or other written communication would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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, the Corporation will give prompt notice thereof to the ~~Underwriters~~ Underwriters, the Forward Purchaser and the Forward Seller and, if requested by the Underwriters, the Forward Purchaser and the Forward Seller, will prepare and furnish without charge to each ~~Underwriter~~ Underwriter, the Forward Purchaser and the Forward Seller a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (gf) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (hg) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you may reasonably request. (ih) The Corporation will arrange or cooperate in ~~arrangements~~ arrangements, if necessary, for the qualification of the ~~Notes~~ Shares for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (ji) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement and the Forward Sale Agreement, including (i) the printing and filing of the Registration Statement and the printing of this Agreement, the Forward Sale Agreement and any Blue Sky Survey, (ii) the ~~preparation and printing of certificates for the Notes, (iii) the~~ issuance and delivery of the ~~Notes~~ Shares and any shares of Common Stock issuable in connection with the settlement of the Forward Sale Agreement as specified ~~herein~~herein and therein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Shares under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~7(h) hereof and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (viv) the printing and delivery to the ~~Underwriters,~~ Underwriters in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (~~vi) any fees charged by independent rating agencies for rating the Notes, (vii~~v) any fees and expenses in connection with the listing of the ~~Notes~~ Shares and any shares of Common Stock issuable in connection with the settlement of the Forward Sale Agreement on the New York Stock Exchange, (~~viii~~vi) any filing fee required by the Financial Industry Regulatory Authority, Inc., (ixvii) the costs of any depository arrangements for the ~~Notes~~ Shares and any shares of Common Stock issuable in connection with the settlement of the Forward Sale Agreement with DTC or any successor depositary and (xviii) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the ~~Notes~~Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (xviii). (j) During a period of 60 days from the date of the Prospectus, the Corporation will not, without the prior written consent of the Representatives, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer, dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares or enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Shares, whether any such swap or transaction is to be settled by delivery of Shares or other securities, in cash or otherwise; provided, however, that the foregoing shall not apply to any securities or options to purchase any securities granted or sold pursuant to any employee or director compensation plans of the Corporation or employee or other investment plans of the Corporation as in effect on the date of this Agreement, or transactions under or pursuant to the Forward Sale Agreement, including the issuance and transfer of shares of Common Stock to the Forward Purchaser pursuant thereto, and transactions under or pursuant to any existing forward sale agreements entered into in connection with the Corporation’s equity distribution agreement dated February 20, 2018, including the issuance and transfer of shares of Common Stock to the applicable forward purchasers pursuant thereto. (k) The Corporation will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange. Additionally, the Corporation will use its best efforts to list on the New York Stock Exchange, upon issuance by the Corporation, (i) the Corporation Shares to be issued and sold by the Corporation hereunder, if any, and (ii) the shares of Common Stock, if any, to be issued to the Forward Purchaser in connection with the settlement of the Forward Sale Agreement. (l) The Corporation will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Corporation to facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares to be issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Shares to be issued and sold pursuant to this Agreement other than to the Underwriters, the Forward Purchaser and the Forward Seller.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. The Corporation hereby covenants ~~and agrees with~~ to the ~~several Underwriters that~~Underwriter that the Corporation: (a) ~~The Corporation~~ will ~~cause any Preliminary~~ file the Final Prospectus and other documents required under the ~~Prospectus~~ applicable Securities Laws with the Securities Regulators on or before April 8, 2020, or such earlier or later date as agreed to ~~be filed pursuant to~~by the Corporation and the Underwriter, in writing, and ~~in compliance with~~obtain a receipt therefor; (b) will advise the Underwriter, ~~Rule 424(b)~~ promptly after receiving notice thereof, of the ~~1933 Act Regulations~~time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Underwriter of each such filing and copies of such receipts; (c) will advise the ~~Underwriters~~ Underwriter, promptly after receiving notice or obtaining knowledge thereof, of: (i) the suspension of the ~~filing~~ qualification of the Units or the Over-Allotment Option for offering, sale, issuance, or grant, as applicable, in any jurisdiction, or the issuance by any Canadian Securities Regulators of any ~~amendment~~ order suspending or ~~supplement to~~ preventing the ~~Registration Statement~~use of the Preliminary Prospectus, the Final Prospectus or any Supplementary Material; (ii) the institution, threatening or contemplation of any proceeding for any such purposes; (iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in any securities of the Corporation (including the Units) has been issued by any Securities Regulator or the institution, threatening or contemplation of any proceeding for any such purposes; or (iv) any requests made by any Canadian Securities Regulators for amending or supplementing the Preliminary Prospectus or the Final Prospectus ~~and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~or for additional information, and will use its ~~best~~ commercially reasonable efforts to prevent the issuance of any ~~such stop~~ order ~~and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice~~ referred to in ~~Rule 173(a~~(i) of above and, if any such order is issued, to obtain the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs~~ withdrawal thereof as ~~a result of which the Pricing Disclosure Package or the Prospectus~~ quickly as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.possible; (d) ~~Without~~ from and including the ~~prior consent~~ date of this Agreement through to and including the Option Closing Time, do all such acts and things necessary to ensure that the representations and warranties of the ~~Underwriters, the~~ Corporation ~~has not made and will not make~~ contained in this Agreement or any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus certificates or ~~a free writing prospectus that is not required to be filed~~ documents delivered by the Corporation pursuant to ~~Rule 433~~ this Agreement remain materially true and correct and not do any such act or thing that would render any representation or warrant of the ~~1933 Act Regulations;~~ Corporation contained in this Agreement or any ~~such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented~~ certificates or documents delivered by it pursuant to ~~by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated~~ this Agreement materially untrue or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.incorrect; (e) ~~The~~ except to the extent the Corporation ~~agrees to prepare~~ participates in a ~~term sheet specifying~~ merger or business combination transaction which the ~~terms~~ Corporation’s board of directors determines is in the best interest of the ~~Notes~~ Corporation and following which the Corporation is not ~~contained~~ a “reporting issuer”, will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in ~~any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf~~ default of the ~~Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b)~~ requirements of the ~~1933 Act Regulations prior~~ Securities Laws of each of the Qualifying Jurisdictions to the ~~close of business two business days after~~ date which is 36 months following the ~~date hereof.~~Closing Date; (f) ~~The~~ except to the extent the Corporation ~~agrees that if at any time following~~ participates in a merger or business combination transaction which the ~~issuance~~ Corporation’s board of ~~a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with~~ directors determines is in the ~~information (not superseded or modified as~~ best interest of the ~~Effective Date) in~~ Corporation and following which the ~~Registration Statement,~~ Corporation is not listed on the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleadingTSX, the Corporation will ~~give prompt notice thereof~~ use its commercially reasonable efforts to maintain the listing of the Common Shares on the TSX or such other recognized stock exchange or quotation system as the Underwriter may approve, acting reasonably, to the ~~Underwriters and, if requested by~~ date that is 36 months following the ~~Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus~~ Closing Date so long as the Corporation meets the minimum listing requirements of the TSX or such other ~~document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement~~ exchange or ~~omission.~~quotation system; (g) ~~The~~ during the distribution of the Units, the Corporation will ~~make generally available~~ consult with the Underwriter and promptly provide to ~~its security holders, in each case as soon as practicable but not later than 60 days after~~ the ~~close~~ Underwriter drafts of any press releases of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required Corporation for review by the ~~1933 Act) covering (i)~~ Underwriter and the Underwriter’s counsel prior to issuance, provided that any such review will be completed in a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement.timely manner; and (h) ~~The Corporation~~ will ~~furnish to you, without charge, copies of~~ use the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing net proceeds of the offering of Units contemplated herein in the ~~Notes, including, without limitation, expenses associated with~~ manner and subject to the ~~production~~ qualifications described in the Prospectus under the heading “Use of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Proceeds”.

Appears in 1 contract

Samples: Underwriting Agreement

Covenants of the Corporation. (1) The Corporation hereby covenants to the Underwriters and ~~agrees with~~ the ~~several Underwriters that~~Purchasers that it will: (a) ~~The Corporation will cause any Preliminary Prospectus~~ fulfil all legal requirements to issue and deliver the ~~Prospectus~~ Common Shares comprising part of the Units (and Over-Allotment Units if applicable), to create, issue and deliver the Warrants (and Over-Allotment Warrants if applicable), to sell, issue and deliver the Common Shares underlying the Warrants upon the due and proper exercise of the Warrants including payment of the exercise price (and Over-Allotment Warrants if applicable), in compliance with the applicable Securities Legislation to enable the Units and, if applicable, the Over-Allotment Units, to be ~~filed pursuant to,~~ offered for sale and ~~in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement~~ sold to the ~~Registration Statement~~Purchasers, ~~any Preliminary Prospectus~~ without the necessity of filing a prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.an offering memorandum; (b) ~~If at any time when a prospectus relating~~ use its reasonable best efforts to obtain the necessary regulatory consents from the Exchange to the ~~Notes (or~~ Offering on such terms as are mutually acceptable to the ~~notice referred to in Rule 173(a) of~~ Underwriters and the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material factCorporation, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.acting reasonably; (c) ~~The Corporation~~use reasonable commercial efforts to maintain the listing of the Common Shares and arrange for the listing of the Common Shares comprising part of the Units, the Common Shares issuable upon exercise of the Warrants and, if applicable, the Common Shares comprising part of the Over-Allotment Units and the Common Shares issuable upon exercise of the Over-Allotment Warrants, on the Exchange and maintain its status as a reporting issuer in each of the Offering Provinces for a period of at least one year from the Closing Date; (d) not, during the period ~~when a prospectus relating~~ from the date hereof to the ~~Notes~~ day that is ~~required to be delivered under~~ 90 days after the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees thatClosing Date, without the prior written consent of the ~~Corporation~~Underwriters not to be unreasonably withheld, ~~it has not made~~ amend the terms and ~~will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405~~ conditions of the ~~1933 Act Regulations~~common shares or issue any additional securities or any options, warrants or contractual rights which may result in the issue of common shares, other than ~~a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation~~ (i) pursuant to ~~Rule 433~~ the exercise of securities outstanding on the date hereof, (ii) pursuant to the Offering, and the exercise of the ~~1933 Act Regulations; any such free writing prospectus~~ Over-Allotment Option, (~~which shall include~~ iii) pursuant to the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433Corporation’s existing stock option plan, and ~~has complied and will comply~~ (iv) pursuant to any bona fide arm’s length acquisition of a business whether by way of a purchase of shares or assets, merger, plan of arrangement, amalgamation or otherwise provided such business is consistent with the ~~requirements~~ current mineral exploration and development business of ~~Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with~~ the ~~Commission where required, legending and record keeping.~~Corporation; (e) ~~The Corporation agrees~~ be a “qualifying issuer” as such term is defined in MI 45-102 at the Time of Closing and fulfil to ~~prepare a term sheet specifying~~ the ~~terms~~ satisfaction of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. Underwriters all requirements (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, ~~expenses associated~~ compliance with the ~~production~~ Securities Legislation) required to be fulfilled by the Corporation in order to distribute the Units, and, if applicable, the Over-Allotment Units, with a statutory hold period under the Securities Legislation, which does not extend beyond four months and one day after the Closing Date; and (f) file within the prescribed time limits such documents as may be required under the applicable Securities Legislation relating to the private placement of ~~road show slides~~ the Units and, if applicable, the Over-Allotment Units, which, without limiting the generality of the foregoing, shall include a Form 45-501F1 as prescribed by Rule 45-501 made under the Ontario Act and, if necessary, a Form 45-102F2 as prescribed by MI 45-102, and ~~graphics,~~ pay all filing fees ~~and expenses of any consultants engaged~~ to be paid in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)therewith.

Appears in 1 contract

Samples: Underwriting Agreement (Aurizon Mines LTD)

Covenants of the Corporation. The Corporation covenants and agrees with the ~~several~~ Underwriters ~~that~~as follows: (a) ~~The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ To advise the Underwriters promptly of ~~the filing of~~ any amendment or supplement of the Registration Statement or the Prospectus which is proposed to be filed and not to effect such amendment or supplement in a form to which the Underwriters reasonably object. (b) If requested, to furnish to the Underwriters and to the counsel for the Underwriters, one copy of the Registration Statement filed pursuant to XXXXX, including exhibits and Incorporated Documents, relating to the Equity Securities in the form it became effective and of all amendments thereto, including exhibits; and to each such firm and counsel, copies of each Preliminary Prospectus and Prospectus and any amendment or supplement thereto relating to the Purchased Securities. (c) As soon as it is advised thereof, to advise the Underwriters of (i) the initiation or threatening by the Commission of any proceedings for the issuance of any order suspending the effectiveness of the Registration Statement or suspending the use of the Prospectus, (ii) receipt by it or any representative or attorney of it of any other communication from the Commission relating to the Corporation, the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or (iii) suspension of qualification of the Purchased Securities for offering or sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Corporation will make every reasonable effort to prevent the issuance of an order suspending the effectiveness of the Registration Statement, or the use of the Prospectus, any Preliminary Prospectus or ~~the Prospectus and of the institution by the Commission of~~ any ~~stop order proceedings in respect of the Registration Statement~~Issuer Free Writing Prospectus, and ~~will use its best efforts to prevent the issuance of~~ if any such ~~stop~~ order ~~and~~ is issued, to obtain as soon as possible ~~its lifting, if issued~~the lifting thereof. (bd) ~~If at any time when a prospectus relating~~ To deliver to the ~~Notes (or the notice referred to in Rule 173(a)~~ Underwriters, without charge, as many conformed copies of the ~~1933 Act Regulations~~Registration Statement (excluding exhibits but including the Incorporated Documents), the Preliminary Prospectus, the Prospectus and each Issuer General Use Free Writing Prospectus and all amendments and supplements to such documents as the Underwriters may reasonably request. (e) During such period as a Prospectus is required by law to be delivered ~~under~~ by an Underwriter or dealer, to deliver, without charge, to the ~~1933 Act~~ Underwriters and dealers, at such office or offices as the Underwriters may designate, as many copies of the Prospectus and any amendment or supplement thereto as the Underwriters may reasonably request. (f) During the period in which copies of the Prospectus are to be delivered as provided in subsection (e) above, if any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material ~~fact,~~ fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is shall be necessary ~~at any time~~ during such same period to amend the ~~Pricing Disclosure Package~~ Registration Statement or amend or supplement the Prospectus to comply with the ~~1933 Act~~Securities Act or file any document which will be deemed an Incorporated Document in order to comply with the Exchange Act and the rules and regulations thereunder, forthwith to prepare, submit to the ~~Corporation promptly will prepare and~~ Underwriters, file with the Commission ~~an amendment~~and deliver, ~~supplement~~ without charge to the Underwriters either (i) amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ the Registration Statement or ~~14 of~~ Prospectus so that the ~~1934 Act which~~ statements in the Registration Statement or Prospectus, as so amended or supplemented, will ~~correct~~ not be misleading or (ii) such ~~statement~~ amendments, supplements or ~~omission or~~ documents which will effect such compliance. Delivery by the Underwriters of any such amendments or supplements to the Prospectus or documents shall not constitute a waiver of any of the conditions set forth in Section 6 hereof. (cg) ~~The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed~~ To retain in accordance with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Rules all Issuer Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is Prospectuses not required to be filed ~~by the Corporation~~ pursuant to ~~Rule 433 of~~ the ~~1933 Act Regulations~~Rules; ~~any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation~~ and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time ~~following~~ after the ~~issuance~~ date of ~~a Permitted Free Writing Prospectus~~ the Underwriting Agreement any ~~event occurs~~ events shall have occurred as a result of which ~~such Permitted~~ any Issuer Free Writing ~~Prospectus~~ Prospectus, as then amended or supplemented, would conflict with the information ~~(not superseded or modified as of the Effective Date)~~ in the Registration Statement, the ~~Pricing Disclosure Package~~ Preliminary 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~~prevailing at that subsequent time, not misleading, ~~the Corporation will give prompt notice thereof~~ to notify the Underwriters ~~and~~and promptly amend or supplement, ~~if requested by the Underwriters~~at its own expense, ~~will prepare and furnish without charge~~ such Issuer Free Writing Prospectus to ~~each Underwriter a free writing prospectus~~ eliminate or ~~other document, the use of which has been consented to by the Underwriters, which will~~ correct such conflict, untrue statement or omission. (gh) ~~The Corporation will~~ To make generally available to ~~its~~ the Corporation’s security holders, ~~in each case~~ as soon as ~~practicable but not later than 60 days after the close of the period covered thereby~~practicable, an earnings ~~statements (in form complying with~~ statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably requestpromulgated thereunder. (i) ~~The Corporation will arrange or~~ To cooperate with the Underwriters in ~~arrangements~~ qualifying the Purchased Securities for ~~the qualification of the Notes for~~ offer and sale under the securities or “blue sky” laws of such jurisdictions as ~~you designate and will continue such qualifications~~ the Underwriters may reasonably request; provided that in ~~effect so long as required for the distribution; provided, however, that~~ no event shall the Corporation ~~shall not~~ be ~~required~~ obligated to qualify ~~as a foreign corporation or~~ to ~~file~~ do business in any ~~general consents~~ jurisdiction where it is not now so qualified, to take any action which would subject it to service of process ~~under~~ in suits, other than those arising out of the ~~laws~~ offering or sale of the Purchased Securities, in any ~~state~~ jurisdiction where it is not now so subject, to qualify in any jurisdiction as a broker-dealer or to subject itself to any taxing authority where it is not now so subject. (j) ~~The~~ During the period of five years from the date hereof, to supply to the Underwriters, copies of such financial statements and other periodic and special reports as the Corporation ~~will~~ may from time to time distribute generally to its lenders or to the holders of any class of its securities registered under Section 12 of the Exchange Act and to furnish to the Underwriters a copy of each annual or other report it shall be required to file with the Commission. (k) To pay all of its own expenses ~~incident to~~ incurred in connection with the performance of its obligations under this Agreement, and the Corporation will pay, or reimburse if paid by the Underwriters, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all reasonable costs and expenses incident to the performance of the obligations of the Corporation under this Agreement, including those relating to (i) the preparation, printing and filing of the Registration Statement and exhibits thereto, each Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements thereto, and the printing of this ~~Agreement and any Blue Sky Survey~~Agreement, (ii) the preparation and ~~printing~~ delivery of ~~certificates for~~ the ~~Notes~~Purchased Securities to the Underwriters, including the costs and expenses of any trustee, registrar, transfer agent and any agent thereof, including any reasonable fees and disbursements of counsel therefor, (iii) the ~~issuance and delivery~~ registration or qualification of the ~~Notes as specified herein~~Purchased Securities for offer and sale under the securities or “blue sky” laws of the various jurisdictions referred to in subsection (i) above, ~~(iv)~~ including the reasonable fees and disbursements of counsel for the Underwriters in connection ~~with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i)~~ therewith and ~~in connection with~~ the preparation and printing of ~~the Blue Sky Survey, such fees not to exceed $5,000~~legal investment and preliminary and supplementary “blue sky” memoranda, (viv) the ~~printing and delivery~~ furnishing to the ~~Underwriters, in quantities as hereinabove referred to,~~ Underwriters of copies of the ~~Registration Statement and any amendments thereto, of any~~ Preliminary Prospectus, of the Prospectus, of any ~~Permitted~~ Issuer Free Writing Prospectus and any amendments or supplements thereto, ~~(vi) any fees charged~~ and of the several documents required by ~~independent rating agencies for rating the Notes~~this Section to be so furnished, including costs of shipping and mailing, (~~vii~~v) ~~any fees and expenses in connection with~~ the listing of the ~~Notes~~ Purchased Securities on any securities exchange and (vi) the furnishing to the Underwriters of copies of all reports and information required by Section 7(j) above, including costs of shipping and mailing. (l) During the period beginning on the ~~New York Stock Exchange~~date of this Agreement and continuing to and including the date 60 days after the date of this Agreement, not to, directly or indirectly, (~~viii~~i) offer, pledge, sell or contract to sell any ~~filing fee required by~~ Equity Securities or any securities convertible into or exchangeable or exercisable for or repayable with Equity Securities (the ~~Financial Industry Regulatory Authority~~“Lock-Up Securities”); (ii) sell any option or contract to purchase any Lock-Up Securities; (iii) purchase any option or contract to sell any Lock-Up Securities; (iv) grant any option, ~~(ix)~~ right or warrant for the ~~costs~~ sale of any ~~depository arrangements for~~ Lock-Up Securities; (v) otherwise dispose of or transfer any Lock-Up Securities; (vi) file a registration statement related to the ~~Notes with DTC~~ Lock-Up Securities; or (vii) enter into any ~~successor depositary and~~ swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of Equity Securities or other securities, in cash or otherwise (other than (x) the ~~costs~~ issuance of securities pursuant to the Agreement and ~~expenses~~ Plan of ~~the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes~~Merger dated October 16, ~~including~~2011, ~~without limitation, expenses associated with the production of road show slides~~ by and ~~graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of~~ among the Corporation, ~~travel~~ Sherpa Merger Sub, Inc., Sherpa Acquisition, LLC, El Paso Corporation, Sirius Holdings Merger Corporation and ~~lodging expenses~~ Sirius Merger Corporation, (y) the issuance of securities to holders of outstanding 43/4% trust convertible preferred securities of El Paso Energy Capital Trust I or (z) pursuant to equity plans, programs or arrangements described in the Pricing Disclosure Package and the Prospectus existing on, or upon the conversion or exchange of convertible or exchangeable securities, or the exercise of warrants, outstanding as of, the date of this Agreement), without the prior written consent of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Kinder Morgan, Inc.)

Covenants of the Corporation. The Corporation hereby covenants ~~and agrees with~~ to the ~~several~~ Underwriters ~~that~~that the Corporation: (a) ~~The Corporation~~ will ~~cause any~~ advise the Underwriters, promptly after receiving notice thereof, of the time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the ~~Prospectus~~ Passport System and will provide evidence reasonably satisfactory to ~~be filed pursuant to~~the Underwriters of each such filing and copies of such receipts; (b) will advise the Underwriters, ~~and~~ promptly after receiving notice or obtaining knowledge thereof, of: (i) the issuance by any Securities Regulators of any order suspending or preventing the use of any Offering Document; (ii) the institution, threatening or contemplation of any proceeding for any such purposes; (iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in ~~compliance with, Rule 424(b)~~ any securities of the ~~1933 Act Regulations~~Corporation (including the Offered Shares) has been issued by any securities regulatory authority or any stock exchange or the institution, ~~and advise the Underwriters promptly of the filing~~ threatening or contemplation of any ~~amendment~~ proceeding for any such purposes; or (iv) any requests made by any securities regulatory authority or ~~supplement to the Registration Statement,~~ any ~~Preliminary Prospectus~~ stock exchange for amending or ~~the Prospectus and of the institution by the Commission of~~ supplementing any ~~stop order proceedings in respect of the Registration Statement~~Offering Document or for additional information, and will use its ~~best~~ commercially reasonable efforts to prevent the issuance of any ~~such stop order and to obtain as soon as possible its lifting~~order, ~~if issued. (b) If at any time when a prospectus relating to the Notes (~~ruling or ~~the notice~~ determination referred to in ~~Rule 173(a~~(i) of or (iii) above and, if any such order, ruling or determination is issued, to obtain the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs~~ withdrawal thereof as ~~a result of which the Pricing Disclosure Package or the Prospectus~~ quickly as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.possible; (c) ~~The Corporation~~from and including the date of this Agreement through to and including the Closing Time, ~~during~~ do all such acts and things necessary to ensure that the ~~period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ representations and warranties of the ~~1934 Act. (d) Without the prior consent of the Underwriters, the~~ Corporation ~~has not made and will not make~~ contained in this Agreement or any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus certificates or ~~a free writing prospectus that is not required to be filed~~ documents delivered by the Corporation pursuant to ~~Rule 433~~ this Agreement remain materially true and correct and not do any such act or thing that would render any representation or warrant of the ~~1933 Act Regulations;~~ Corporation contained in this Agreement or any ~~such free writing prospectus~~ certificates or documents delivered by it pursuant to this Agreement materially untrue or incorrect; (~~which shall include~~ d) during the ~~pricing term sheet discussed in Section 5(e) below)~~distribution of the Offered Shares, the ~~use~~ Corporation will consult with the Underwriters and promptly provide to the Underwriters drafts of ~~which has been consented to~~ any press releases of the Corporation for review by the ~~Corporation~~ Underwriters and the Underwriters’ counsel prior to issuance, ~~is listed on Schedule B and herein called~~ provided that any such review will be completed in a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely ~~filing with the Commission where required, legending and record keeping.~~manner; (e) ~~The Corporation agrees~~ fulfill all legal requirements to ~~prepare a term sheet specifying~~ permit the ~~terms~~ creation, issue, offering and sale of the ~~Notes not contained~~ Offered Shares as contemplated in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, ~~expenses associated~~ compliance with the ~~production~~ Securities Laws of ~~road show slides~~ the Selling Jurisdictions to enable the Offered Shares to be offered for sale and ~~graphics~~sold to the Underwriters and/or the Substituted Purchasers; (f) will ensure that the Offered Shares are duly and validly issued as fully paid and non-assessable Common Shares; (g) will ensure that the necessary regulatory and third party consents and approvals, including from the TSX, in respect of the Offering are obtained on or prior to the Closing Date; (h) will make all necessary filings and pay all filing fees ~~and expenses of any consultants engaged~~ required to be paid in connection with the ~~road show presentations~~ transactions contemplated in this Agreement; (i) will use its commercially reasonable efforts to maintain its status as a “reporting issuer” (or the equivalent thereof) not in default of the requirements of the Securities Laws in the Reporting Provinces until the date that is two years following the Closing Date, provided that this covenant shall not prevent the Corporation from completing any transaction (an “Excluded Transaction”) which would result in the Corporation ceasing to be a “reporting issuer” so long as the holders of the Common Shares receive securities of an entity which is listed on a recognized stock exchange in North America, or cash, or the holders of the Common Shares have approved the transaction in accordance with the ~~prior approval~~ requirements of applicable corporate laws and securities laws and stock exchange rules and policies; (j) will use its commercially reasonable efforts to remain listed for trading on the TSX until the date that is two years following the Closing Date, provided that this covenant shall not prevent the Corporation from completing any Excluded Transaction; (k) will use the gross proceeds of the ~~Corporation~~Offering of Offered Shares contemplated herein in the manner and subject to the qualifications described in the Final Prospectus under the heading “Use of Proceeds”; (l) will fulfil or cause to be fulfilled, ~~travel and lodging expenses of~~ at or prior to the ~~Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however~~Closing Time, the ~~Underwriters shall reimburse a portion of the costs and expenses referred to~~ conditions set out in ~~this clause (x).~~Section 10;

Appears in 1 contract

Samples: Underwriting Agreement

Covenants of the Corporation. ~~The~~ In further consideration of the agreements of the Underwriters herein contained, the Corporation covenants ~~and agrees with the several Underwriters that~~as follows: (a) The Corporation will ~~cause any Preliminary~~ prepare the Final Prospectus in a form approved by the Underwriters and will file such Final Prospectus with the ~~Prospectus~~ Commission pursuant to ~~be filed pursuant to, and in compliance with,~~ the applicable subparagraph of Rule 424(b) or Rule 434 within the time period prescribed. The Corporation will notify the Underwriters immediately, and confirm the notice in writing, (i) if not effective at the time of execution of this Agreement, of the ~~1933 Act Regulations~~effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment), and ~~advise the Underwriters promptly~~ of the filing of the Final Prospectus pursuant to Rule 424(b) or Rule 434, (ii) of any request by the Commission for any amendment to the Registration Statement, or any amendment or supplement to the ~~Registration Statement, any Preliminary~~ Final Prospectus or ~~the Prospectus~~ for additional information, and (iii) of the ~~institution~~ issuance by the Commission of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration ~~Statement~~Statement of the suspension of the qualification of the securities for offering or sale in any jurisdiction, ~~and~~ or of the initiation or threatening of any proceeding for such purpose. The Corporation will ~~use its best efforts~~ make every reasonable effort to prevent the issuance of any ~~such~~ stop order ~~and~~ or of any order suspending any such qualification and, if any such order is issued, to obtain ~~as soon as~~ the lifting thereof at the earliest possible ~~its lifting, if issued~~moment. (b) ~~If at any time when a prospectus relating~~ The Corporation will deliver to the ~~Notes (or the notice referred to in Rule 173(a)~~ Underwriters such number of conformed copies of the ~~1933 Act Regulations~~Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Final Prospectus and exhibits thereto) as such Underwriters may reasonably request and copies of each Preliminary Final Prospectus, the Final Prospectus and any amendment or supplement to such Final Prospectus. (c) The Corporation will furnish to the Underwriters, from time to time during the period when the Final Prospectus is required to be delivered under the ~~1933~~ Securities Act, such number of copies of the Final Prospectus (as amended or supplemented, if applicable) as they may reasonably request for the purposes contemplated by the Securities Act or the Securities Act Regulations. (d) The Corporation will deliver to the Underwriters notice of its intention to prepare or file any amendment to the Registration Statement relating to the Debt Securities (including any post-effective amendment) or any amendment or supplement to the Final Prospectus (other than documents deemed to be incorporated by reference into the Final Prospectus) which the Corporation proposes for use by the Underwriters in connection with the offering of the Debt Securities and which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations, will furnish the Underwriters and counsel for the Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object. (e) If, during such period after the Closing Date and prior to the date on which the distribution of Debt Securities by the Underwriters is completed, any event ~~occurs~~ shall occur as a result of which it is necessary, in the ~~Pricing Disclosure Package~~ opinion of the Corporation's counsel, to amend or supplement the Final Prospectus (as then amended or ~~supplemented would include~~ supplemented) in order to ensure that the Final Prospectus does not contain an untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary ~~at any time~~ to amend or supplement the ~~Pricing Disclosure Package or the~~ Final Prospectus to comply with ~~the 1933 Act~~law, the Corporation ~~promptly~~ will forthwith prepare and ~~file with~~ furnish, at the ~~Commission an amendment~~Corporation's own expense, ~~supplement~~ to the Underwriters, either amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ the Final Prospectus so that the statements in the Final Prospectus as so amended or 14 supplemented will not, in the light of the ~~1934 Act~~ circumstances under which they were made, be misleading or so that the Final Prospectus will ~~correct such statement or omission or which will effect such compliance~~comply with law, as the case may be. (cf) The Corporation, during the period when ~~a prospectus relating to~~ the ~~Notes~~ Final Prospectus is required to be delivered under the ~~1933~~ Securities Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 13, 14 or 14 15 of the ~~1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating~~ Exchange Act subsequent to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omissionStatement becomes effective. (g) The Corporation will ~~make generally available~~ endeavor to ~~its security holders, in each case as soon as practicable but not later than 60 days after~~ qualify the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement Debt Securities for offer and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the securities or blue sky laws of such jurisdictions as ~~you designate~~ any Underwriter shall reasonably request and ~~will continue~~ to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such ~~qualifications in effect so long as required for~~ qualification and the ~~distribution~~printing of any memoranda concerning the aforesaid qualification; provided, however, that the Corporation shall not be required to qualify ~~as a foreign corporation or~~ to ~~file~~ do business in any ~~general consents to service of process under the laws of any state~~ jurisdiction where it is not now so qualified or to take any action which would subject it to general or unlimited service of process in any jurisdiction where it is not now subject. (h) During the period beginning on the date hereof and continuing to and including the Closing Date, the Corporation will not offer, sell, contract to sell or otherwise dispose of (other than in an offering made exclusively outside the United States) any securities of the Corporation substantially similar to the Debt Securities or any securities convertible into or exchangeable for the Debt Securities without the prior written consent of the Underwriters. (i) During the period when the Debt Securities are outstanding, the Corporation will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act. (j) The Corporation will ~~pay all expenses incident~~ make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the ~~performance of its obligations under this Agreement including (i) the printing and filing~~ effective date of the Registration ~~Statement and the printing of this Agreement and any Blue Sky Survey~~Statement, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments an earnings statement or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses statements of the Corporation ~~relating to investor presentations on any “road show” undertaken in connection with~~ (which need not be audited) which shall satisfy the ~~marketing~~ requirements of Section 11(a) of the ~~offering~~ Securities Act and Rule 158 of the ~~Notes, including, without limitation, expenses associated with the production of road show slides~~ Securities Act Regulations and ~~graphics, fees and expenses of any consultants engaged~~ will advise you in ~~connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any~~ writing when such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)statement has been so made available.

Appears in 1 contract

Samples: Underwriting Agreement (M&t Bank Corp)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly of the filing of any amendment (and effectiveness thereof) or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the ~~Prospectus~~ Prospectus, of the filing of any Rule 462(b) registration statement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ Bonds is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Bonds is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the ~~Notes~~ Bonds for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the ~~preparation and printing of certificates for the Notes, (iii) the~~ issuance and delivery of the ~~Notes~~ Bonds as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Bonds under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the ~~Notes~~Bonds, (~~vii~~vi) any fees and expenses in connection with the listing of the ~~Notes~~ Bonds on the New York Stock ~~Exchange, (viii~~Exchange,(vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, ~~(ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary~~ Inc. and (xviii) the costs and expenses of the Corporation relating to investor presentations on any “"road show” " undertaken in connection with the marketing of the offering of the ~~Notes~~Bonds, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of ~~the Underwriters~~ and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (xviii).

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust V)

Covenants of the Corporation. 8.1 The Corporation covenants and agrees with the ~~several~~ Underwriters ~~that~~that the Corporation: (a) ~~The Corporation~~ will ~~cause any Preliminary~~ advise the Underwriters, promptly after receiving notice thereof, of the time when the Prospectus Amendment, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained and will provide evidence reasonably satisfactory to the ~~Prospectus to be filed pursuant to,~~ Underwriters of each such filing and ~~in compliance with, Rule 424(b~~copies of such receipts; (b) ~~of the 1933 Act Regulations, and~~ will advise the ~~Underwriters~~ Underwriters, promptly of after receiving notice or obtaining knowledge thereof, of: (i) the ~~filing of~~ issuance by any ~~amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the~~ Securities Commission of any ~~stop~~ order ~~proceedings in respect~~ suspending or preventing the use of the ~~Registration Statement~~Preliminary Prospectus, the Prospectus Amendment, the Final Prospectus or any Supplementary Material; (ii) the suspension of the qualification of the Underwritten Shares in any of the Qualifying Jurisdictions; (iii) the institution, threatening or contemplation of any proceeding for any such purposes; or (iv) any requests made by any Securities Commission for amending or supplementing the Preliminary Prospectus, the Prospectus Amendment or the Final Prospectus or for additional information, and will use its ~~best~~ commercially reasonable efforts to prevent the issuance of any ~~such stop~~ order ~~and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice~~ referred to in ~~Rule 173(a~~(i) of above and, if any such order is issued, to obtain the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs~~ withdrawal thereof as ~~a result of which the Pricing Disclosure Package or the Prospectus~~ quickly as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.possible; (c) ~~The Corporation~~shall not directly or indirectly issue any Common Shares or securities or other financial instruments convertible into or having the right to acquire Common Shares (other than pursuant to rights or obligations under securities or instruments outstanding or pursuant to the Option Plan or pursuant to any corporate transaction) or enter into any agreement or arrangement under which the Corporation acquires or transfers to another, in whole or in part, any of the economic consequences of ownership of Common Shares, whether that agreement or arrangement may be settled by the delivery of Common Shares or other securities or cash, or agree to become bound to do so, or disclose to the public any intention to do so, during the period ~~when a prospectus relating~~ beginning from the date hereof and continuing to and including the ~~Notes is required to~~ date ninety (90) days after the Closing Date without the Underwriters’ prior written consent, which consent will not be ~~delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.~~unreasonably withheld; and (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of shall cause the Corporation’s officers and directors to agree, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the ~~close of business two business~~ Closing Date, not to sell, or agree to sell (or announce any intention to do so), any Common Shares or securities exchangeable or convertible into Common Shares during the period beginning from the date hereof and continuing to and including the date ninety (90) days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by Closing Date without the Underwriters~~, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters~~’ prior written consent, which consent will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreementunreasonably withheld. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement (Loncor Resources Inc.)

Covenants of the Corporation. The Corporation hereby covenants and agrees with the ~~several~~ Underwriters ~~that~~that the Corporation: (a) ~~The Corporation~~ will ~~cause any~~ advise the Underwriters, promptly after receiving notice thereof, of the time when the Preliminary Prospectus, the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the ~~Prospectus to be filed pursuant to~~Mutual Reliance Procedures, as applicable, and ~~in compliance with~~will provide evidence reasonably satisfactory to the Underwriters of each such filing and copies of such receipts; (b) will advise the Underwriters, ~~Rule 424(b~~promptly after receiving notice or obtaining knowledge thereof, of: (i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the ~~1933 Act Regulations~~Preliminary Prospectus, ~~and advise~~ the ~~Underwriters promptly~~ Final Prospectus or any Supplementary Material; (ii) the suspension of the ~~filing~~ qualification of the Offered Securities in any of the Qualifying Provinces or the institution, threatening or contemplation of any proceeding for any such purposes; or (iii) any requests made by any Canadian Securities Regulators for an amendment ~~or supplement~~ to the ~~Registration Statement, any~~ Preliminary Prospectus or the Final Prospectus ~~and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~or for additional information, and will use its ~~best~~ commercially reasonable efforts to prevent the issuance of any ~~such stop~~ order ~~and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice~~ referred to in ~~Rule 173(a~~(i) of above and, if any such order is issued, to obtain the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs~~ withdrawal thereof as ~~a result of which the Pricing Disclosure Package or the Prospectus~~ quickly as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.possible; (c) ~~The Corporation, during~~ will use its reasonable best efforts to maintain its status as a “reporting issuer” (or the ~~period when~~ equivalent thereof) not in default of the requirements of the Securities Laws of at least one of the Qualifying Provinces which have such a ~~prospectus relating~~ concept to the ~~Notes~~ date that is ~~required to be delivered under~~ at least 18 months following the ~~1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ date of issuance of any Warrant Shares issuable upon exercise of the ~~1934 Act.~~Warrants; (d) ~~Without~~ will use its reasonable best efforts to maintain the ~~prior consent~~ listing of the ~~Underwriters~~Common Shares on the TSX-V or such other recognized stock exchange or quotation system as the Underwriters may approve, acting reasonably, for a period of at least 18 months following the date of issuance of any Warrant Shares issuable upon exercise of the Warrants so long as the Corporation ~~has not made and will not make any offer relating to~~ meets the ~~Notes that would constitute a “free writing prospectus” as defined in Rule 405~~ minimum listing requirements of the ~~1933 Act Regulations,~~ TSX-V or such other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus exchange or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.quotation system; (e) ~~The Corporation agrees~~ will use its reasonable best efforts to ~~prepare a term sheet specifying~~ obtain the ~~terms~~ listing of the ~~Notes not contained in any Preliminary Prospectus, substantially in~~ Warrants on the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof.TSX-V; (f) ~~The Corporation agrees~~ will ensure that ~~if at any time following~~ the ~~issuance of a Permitted Free Writing Prospectus any event occurs~~ Unit Shares and the Flow-Through Shares issuable on the Closing shall be duly issued as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare fully paid and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission.non-assessable Common Shares; (g) ~~The Corporation~~ will ~~make generally available to its security holders, in each case as soon as practicable but not later than 60 days after~~ duly execute and deliver the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package Warrant Indenture and the ~~Prospectus~~certificates representing the Warrants (the “Warrant Certificates”) at the Closing Time, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).and

Appears in 1 contract

Samples: Underwriting Agreement (Crosshair Exploration & Mining Corp)

Covenants of the Corporation. (1) The Corporation covenants and agrees with the ~~several Underwriters~~ Agent, and acknowledges that the Agent is relying on such covenants, that: (a) ~~The Corporation~~ it will ~~cause any Preliminary~~ advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material have been filed and receipts therefor have been obtained and will provide evidence satisfactory to the ~~Prospectus to be filed pursuant to~~Agent of each filing and the issuance of receipts; (b) it will advise the Agent, ~~and in compliance with~~promptly after receiving notice or obtaining knowledge, ~~Rule 424(b~~of: (i) the issuance by any Regulatory Authority of any order suspending or preventing the use of the ~~1933 Act Regulations~~Preliminary Prospectus, ~~and advise~~ the ~~Underwriters promptly~~ Final Prospectus or any Prospectus Amendment; (ii) the suspension of the ~~filing~~ qualification of the Offered Units for Distribution or sale in any of the Qualifying Jurisdictions; (iii) the institution or threatening of any ~~amendment~~ proceeding for any of those foregoing purposes; or ~~supplement to~~ (iv) any requests made by any Securities Commission for amending or supplementing the ~~Registration Statement~~Prospectus, ~~any Preliminary Prospectus~~ or ~~the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~for additional information, and will use its ~~best~~ reasonable commercial efforts to prevent the issuance of any such ~~stop~~ order ~~and~~ and, if any such order is issued, to obtain ~~as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to~~ the ~~Notes (or the notice referred to in Rule 173(a)~~ withdrawal of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.order promptly; (c) ~~The Corporation~~it will ensure that, ~~during~~ at the ~~period when a prospectus relating~~ Closing Time, the Unit Shares and Corporate Finance Fee Unit Shares will be issued as fully paid and non•assessable shares in the capital of the Corporation and the Warrants, Compensation Options, and Corporate Finance Fee Unit Warrants have been duly created and issued and shall have attributes corresponding in all material respects to the ~~Notes is required to be delivered under~~ description thereof set forth in this Agreement, the ~~1933 Act~~Compensation Option Certificate, ~~will timely file all documents required to be filed with~~ and the ~~Commission pursuant to Section 13 or 14 of the 1934 Act.~~Warrant Indenture, as applicable; (d) ~~Without~~ it will ensure that, upon due exercise of the Warrants, Compensation Options, Compensation Unit Warrants and Corporate Finance Fee Unit Warrants in accordance with their terms, the Warrant Shares, Compensation Unit Shares, Compensation Unit Warrant Shares and Corporate Finance Fee Warrant Shares shall be duly issued as fully paid and non-assessable shares in the capital of the Corporation on payment of the purchase price therefor; (e) it will obtain all consents, approvals, Authorizations or filings as may be required under Canadian Securities Laws or otherwise necessary for the execution and delivery of and the performance by the Corporation of its obligations hereunder and under the Offering Documents, other than customary post-Closing filings required to be submitted within the applicable time frame pursuant to Canadian Securities Laws and the rules of the CSE; (f) it will ensure that all required documentation for the listing of the Unit Shares, the Warrant Shares, upon the exercise of the Unit Warrants, the Compensation Unit Shares, upon the exercise of the Compensation Options, the Compensation Unit Warrant Shares, upon the exercise of the Compensation Unit Warrants, and the Corporate Finance Fee Warrant Shares, upon the exercise of the Corporate Finance Fee Unit Warrants, have been filed with the CSE on or prior to the Closing Date, subject to the satisfaction of customary listing conditions set out in the conditional approval letter of the CSE for the Offering, a copy of which has been made available to the Agent, and CSE policies; (g) it will (i) obtain from each of the Corporation’s Principals and each employee of the Corporation that holds Common Shares, each of which is identified in Schedule A, and (ii) use commercially reasonable efforts to obtain from all other holders of its Common Shares (collectively, the “Locked-up Persons”), a lock-up agreement with the Agent whereby such Locked-up Persons agree that they will not, directly or indirectly, offer, sell, contract to sell, grant or sell any option to purchase, purchase any option or contract to sell, hypothecate, pledge, transfer, assign, lend, swap, or enter into any other agreement to transfer the economic consequences of, or otherwise dispose of or deal with (or agree to or publicly announce any intention to do any of the foregoing) whether through the facilities of a stock exchange, by private placement or otherwise, any Common Shares or other securities of the Corporation convertible into, exchangeable for or exercisable to acquire, Common Shares, directly or indirectly, unless (i) they first obtain the prior consent of the ~~Underwriters~~Agent, ~~the Corporation has~~ such consent not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be ~~filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below)~~unreasonably withheld, ~~the use of which has been consented to by the Corporation and the Underwriters~~conditioned or delayed, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).or

Appears in 1 contract

Samples: Agency Agreement

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly of the filing of any amendment (and effectiveness thereof) or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the ~~Prospectus~~ Prospectus, of the filing of any Rule 462(b) registration statement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement (~~four~~ six of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc., (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “"road show” " undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the ~~Underwriters~~ Representatives and officers of the Corporation and any such consultants, ~~and the cost of any aircraft chartered in connection with the road show;~~ provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust Iii)

Covenants of the Corporation. The Corporation hereby covenants to and ~~agrees~~ with the ~~several~~ Underwriters (on their own behalf and on behalf of the Purchasers) that: (a) ~~The~~ the Corporation will ~~cause~~ use commercially reasonable efforts to maintain its status as a reporting issuer not in default in each the Offering Jurisdictions in which it is a reporting issuer or the equivalent for a period of three years following the date of this Agreement, provided that this covenant shall not prevent the Corporation from completing any ~~Preliminary Prospectus~~ transaction which would result in the Corporation ceasing to be a “reporting issuer” so long as the holders of Common Shares receive securities of an entity which is listed on a stock exchange in Canada or United States, or cash, or the holders of the Common Shares have approved the transaction in accordance with the requirements of applicable corporate laws and the ~~Prospectus to be filed pursuant to, and in compliance with, Rule 424(b)~~ policies of the ~~1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment~~ Exchange (or ~~supplement to the Registration Statement, any Preliminary Prospectus~~ such other applicable stock exchange upon which it Common Shares are listed or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.quoted); (b) ~~If at any~~ the Corporation will use commercially reasonable efforts to ensure that all Common Shares outstanding or issuable from time ~~when a prospectus relating~~ to time (including for certainty the Warrant Shares issuable upon exercise of the Warrants) are listed on the Exchange (or such other stock exchange acceptable to the ~~Notes~~ Corporation) for a period of three years following the date of this Agreement, provided that this covenant shall not prevent the Corporation from completing any transaction which would result in the Common Shares ceasing to be listed so long as the holders of Common Shares receive securities of an entity which is listed on a stock exchange in Canada or the United States, or cash, or the holders of the Common Shares have approved the transaction in accordance with the requirements of applicable corporate laws and the policies of the Exchange (or ~~the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of~~ such other applicable stock exchange upon which ~~the Pricing Disclosure Package~~ it Common Shares are listed or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.quoted); (c) ~~The Corporation, during~~ the ~~period when a prospectus relating to~~ Corporation will ensure that the ~~Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ Common Shares forming part of the ~~1934 Act.~~Units, the Warrant Shares, the Compensation Shares and the Compensation Warrant Shares will be conditionally approved for listing on the Exchange upon their issue; (d) ~~Without~~ in the ~~prior consent of~~ event any person acting or purporting to act for the ~~Underwriters~~Corporation establishes a claim from the Underwriters for any brokerage or agency fee in connection with the transactions contemplated herein, the Corporation ~~has not~~ shall indemnify and hold harmless the Underwriters with respect thereto and with respect to all costs reasonably incurred in the defence thereof unless such claim is made ~~and will not make any offer relating to the Notes that would constitute~~ by a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed selling agent appointed by the ~~Corporation~~ Underwriters pursuant to ~~Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below~~subsection 2(b), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.; (e) ~~The Corporation agrees to prepare a term sheet specifying~~ without the ~~terms~~ prior written consent of ~~the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives~~ Cormark on behalf of the Underwriters, such consent not to be unreasonably withheld, the Corporation agrees not to issue, agree to issue, or announce an intention to issue, any Common Shares or any securities convertible into or exercisable for Common Shares (except in connection with the exercise of existing outstanding securities under the Corporation’s stock option plan and ~~to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after~~ outstanding warrant agreements), until the date ~~hereof.~~that is 120 days following the Closing Date; and (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation ~~will give prompt notice thereof to the Underwriters and~~shall, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as ~~practicable but not later than 60 days after the close of the period covered thereby~~practicable, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish use its commercially reasonable best efforts to ~~you, without charge, copies of the Registration Statement (four of which will include~~ receive all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general necessary consents to ~~service of process under~~ the ~~laws of any state where it is not now so subject~~transactions contemplated herein. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement (Sphere 3D Corp)

Covenants of the Corporation. 3.1.1. The Corporation covenants and agrees ~~with~~ that from the ~~several Underwriters that~~date hereof until the earlier of the Completion Date and termination of this Agreement, except as otherwise expressly permitted or specifically provided by this Agreement or as is otherwise required by applicable law: (a) ~~The Corporation will cause~~ not to take any ~~Preliminary Prospectus and the Prospectus~~ action that would render, or may reasonably be expected to ~~be filed pursuant to~~render, ~~and~~ any representation or warranty made by it in ~~compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of~~ this Agreement untrue in any ~~amendment or supplement~~ material respect at any time prior to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.Completion Date; (b) ~~If at any time when a prospectus relating~~ not to adjourn, delay or postpone the ~~Notes (~~Meeting or the ~~notice referred to in Rule 173(a~~Meeting Date without the prior written consent of Xxxxxxx, Xxxxxxxxx and Xxxxxxxx unless (i) required by applicable law or the rules of the ~~1933 Act Regulations~~TSX Venture Exchange; or (ii) is required ~~to be delivered under the 1933 Act any event occurs~~ by a court of competent jurisdiction or required by or as a result of ~~which~~ any requirements imposed by any securities regulatory authority having jurisdiction over the ~~Pricing Disclosure Package~~ Corporation, provided that any adjournment, delay or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document postponement permitted pursuant to ~~Section 13 or 14~~ (i) and (ii) above shall be limited to the minimum length of ~~the 1934 Act which will correct such statement or omission or which will effect such compliance.~~time necessary; (c) ~~The Corporation, during the period when a prospectus relating~~ not to issue any additional Shares or any securities which may be exercised for or converted into Shares (other than Shares issuable pursuant to the ~~Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ exercise of previously issued convertible securities of the ~~1934 Act.~~Corporation outstanding on the date hereof); and (d) ~~Without~~ not to purchase for cancellation any additional Shares under the ~~prior consent~~ normal course issuer bid of the ~~Underwriters~~Corporation as described in its Form 4G - Notice of Intention to Make a Normal Course Issuer Bid dated February 10, 2011. 3.1.2. The Corporation shall use its commercially reasonable efforts to perform all obligations required to be performed by it under this Agreement and to perform all such other acts as may be necessary in order to consummate the transactions contemplated by this Agreement, and without limiting the generality of the foregoing, the Corporation ~~has~~ shall: (a) if not ~~made~~ already done so, as promptly as possible after the execution of this Agreement (i) set and ~~will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405~~ publish notice of the ~~1933 Act Regulations~~Record Date; and (ii) in compliance with all applicable laws, ~~other than~~ prepare the Circular and provide Xxxxxxx, Xxxxxxxxx and Xxxxxxxx with reasonable opportunity to review and comment on drafts thereof, shall include all of Xxxxxxx’x, Xxxxxxxxx’ and Foscolos’ reasonable comments thereon, and shall ensure that the Circular provides the Shareholders (including the Minority Shareholders) with information in sufficient detail to permit them to form a ~~Permitted Free Writing Prospectus; each Underwriter~~reasoned judgment concerning the matters before them, ~~severally~~ and ~~not jointly, represents and agrees that, without~~ the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which Circular shall include the ~~pricing term sheet discussed~~ unanimous determination of the Special Committee that the Redemption is fair to the Minority Shareholders, that the Going Private Transaction as a whole is in ~~Section 5(e) below),~~ the ~~use~~ best interests of ~~which has been consented to by~~ the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433Minority Shareholders, and ~~has complied~~ include the unanimous recommendation of the Board, subject to the disclosure of interests and ~~will comply~~ abstentions by all interested directors, that the Shareholders and Minority Shareholders vote in favour of the Amendment; (b) use its commercially reasonable efforts to mail to the Shareholders the Circular and such other documentation required in order to convene and hold the Meeting by the Meeting Date in compliance with all applicable laws; (c) use its commercially reasonable efforts to fulfill or cause to be fulfilled the conditions relating to it set forth in Section 5 as soon as reasonably practicable; (d) conduct and hold the Meeting in accordance with the ~~requirements~~ by-laws of ~~Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with~~ the ~~Commission where required, legending~~ Corporation and ~~record keeping.~~as required by law; (e) ~~The~~ prior to the date of mailing of the Circular, appoint the Depositary and enter into a depositary agreement with the Depositary in form and substance satisfactory to the Xxxxxxx, Xxxxxxxxx and Xxxxxxxx acting reasonably (the “Depositary Agreement”); (f) make all necessary filings and applications under Canadian federal and provincial laws and regulations required to be made on the part of the Corporation ~~agrees~~ in connection with the Going Private Transaction and the Meeting and take all commercially reasonable action necessary to ~~prepare~~ be in compliance with such laws and regulations; (g) do all things necessary to implement the Amendment and the Redemption, and cooperate with all reasonable requests of Xxxxxxx, Xxxxxxxxx and Xxxxxxxx in respect thereof; (h) do all things necessary to obtain the approval of the Going Private Transaction from the TSX Venture Exchange; (i) consult with Xxxxxxx, Xxxxxxxxx and Xxxxxxxx on all correspondence and dealings with the TSX Venture Exchange and securities regulators; (j) not less than ten (10) Business Days prior to the Meeting Date, make a ~~term sheet specifying~~ written request to Xxxxxxx, Xxxxxxxxx and Xxxxxxxx for delivery of the Redemption Funds or a portion thereof, if required to ensure the Corporation has sufficient funds to pay for the Redemption in accordance with the terms contemplated herein; (k) not less than two Business Days prior to the Meeting Date, convene a meeting of the Board to consider, and if thought fit, pass the Redemption Resolution; (l) as soon as practicable after the Effective Date, forward, or cause to be forwarded, the Redemption Funds to the Depositary and cause the Depositary to: (1) deliver the Consideration, in accordance with the terms of the ~~Notes not contained in any Preliminary Prospectus~~Depositary Agreement (less applicable withholding tax, ~~substantially in~~ if any), to the ~~form~~ Minority Shareholders who tender their Shares to the Depositary accompanied by a duly executed Letter of ~~Schedule C hereto~~ Transmittal; and ~~approved~~ (2) remove all such Minority Shareholders (including relevant Dissenting Shareholders) from the Register of Shareholders; (m) take such steps as are necessary to ensure that the Corporation has sufficient funds to enable the Corporation to (i) deliver the Redemption Funds required by ~~the Representatives on behalf of the Underwriters~~Section 3.1.2 (k) hereof, and ~~to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b~~(ii) satisfy the tests in Section 36(2) of the ~~1933 Act Regulations prior to the close of business two business days after the date hereof.~~ABCA; and (fn) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable ~~but not later than 60 days~~ after the ~~close of~~ Completion Date, the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering Corporation shall: (i) ~~a twelve-month period beginning not later than~~ make application to the ~~first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement~~ TSX Venture Exchange to (i) delist its Shares, and (ii) make application to cease to be a ~~twelve-month period beginning not later than~~ reporting issuer in the ~~first day~~ provinces of ~~the Corporation’s fiscal quarter next following the date of this Agreement~~Alberta and British Columbia. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Support Agreement

Covenants of the Corporation. The Corporation covenants and agrees with the ~~several Underwriters that~~Underwriter as follows: (a) ~~The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ To advise the ~~Underwriters~~ Underwriter promptly ~~of the filing~~ of any amendment or supplement of the Registration Statement or the Prospectus which is proposed to be filed and not to effect such amendment or supplement in a form to which the Underwriter reasonably objects. (b) If requested, to furnish to the Underwriter and to the counsel for the Underwriter, one copy of the Registration Statement filed pursuant to XXXXX, including exhibits and Incorporated Documents, relating to the Equity Securities in the form it became effective and of all amendments thereto, including exhibits; and to each such firm and counsel, copies of each Preliminary Prospectus and Prospectus and any amendment or supplement thereto relating to the Purchased Securities. (c) As soon as it is advised thereof, to advise the Underwriter of (i) the initiation or threatening by the Commission of any proceedings for the issuance of any order suspending the effectiveness of the Registration Statement or suspending the use of the Prospectus, (ii) receipt by it or any representative or attorney of it of any other communication from the Commission relating to the Corporation, the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or (iii) suspension of qualification of the Purchased Securities for offering or sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Corporation will make every reasonable effort to prevent the issuance of an order suspending the effectiveness of the Registration Statement, or the use of the Prospectus, any Preliminary Prospectus or ~~the Prospectus and of the institution by the Commission of~~ any ~~stop order proceedings in respect of the Registration Statement~~Issuer Free Writing Prospectus, and ~~will use its best efforts to prevent the issuance of~~ if any such ~~stop~~ order ~~and~~ is issued, to obtain as soon as possible ~~its lifting, if issued~~the lifting thereof. (bd) ~~If at any time when a prospectus relating~~ To deliver to the ~~Notes (or the notice referred to in Rule 173(a)~~ Underwriter, without charge, as many conformed copies of the ~~1933 Act Regulations~~Registration Statement (excluding exhibits but including the Incorporated Documents), the Preliminary Prospectus, the Prospectus and each Issuer General Use Free Writing Prospectus and all amendments and supplements to such documents as the Underwriter may reasonably request. (e) During such period as a Prospectus is required by law to be delivered ~~under~~ by the ~~1933 Act~~ Underwriter or dealer, to deliver, without charge, to the Underwriter and dealers, at such office or offices as the Underwriter may designate, as many copies of the Prospectus and any amendment or supplement thereto as the Underwriter may reasonably request. (f) During the period in which copies of the Prospectus are to be delivered as provided in subsection (e) above, if any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material ~~fact,~~ fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is shall be necessary ~~at any time~~ during such same period to amend the ~~Pricing Disclosure Package~~ Registration Statement or amend or supplement the Prospectus to comply with the ~~1933 Act~~Securities Act or file any document which will be deemed an Incorporated Document in order to comply with the Exchange Act and the rules and regulations thereunder, forthwith to prepare, submit to the ~~Corporation promptly will prepare and~~ Underwriter, file with the Commission ~~an amendment~~and deliver, ~~supplement~~ without charge to the Underwriter either (i) amendments or ~~an appropriate document pursuant~~ supplements to ~~Section 13~~ the Registration Statement or ~~14 of~~ Prospectus so that the ~~1934 Act which~~ statements in the Registration Statement or Prospectus, as so amended or supplemented, will ~~correct~~ not be misleading or (ii) such ~~statement~~ amendments, supplements or ~~omission or~~ documents which will effect such compliance. Delivery by the Underwriter of any such amendments or supplements to the Prospectus or documents shall not constitute a waiver of any of the conditions set forth in Section 6 hereof. (cg) ~~The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed~~ To retain in accordance with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Rules all Issuer Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is Prospectuses not required to be filed ~~by the Corporation~~ pursuant to ~~Rule 433 of~~ the ~~1933 Act Regulations~~Rules; ~~any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation~~ and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time ~~following~~ after the ~~issuance~~ date of ~~a Permitted Free Writing Prospectus~~ the Underwriting Agreement any ~~event occurs~~ events shall have occurred as a result of which ~~such Permitted~~ any Issuer Free Writing ~~Prospectus~~ Prospectus, as then amended or supplemented, would conflict with the information ~~(not superseded or modified as of the Effective Date)~~ in the Registration Statement, the ~~Pricing Disclosure Package~~ Preliminary 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~~prevailing at that subsequent time, not misleading, to notify the ~~Corporation will give prompt notice thereof~~ Underwriter and promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to ~~the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus~~ eliminate or ~~other document, the use of which has been consented to by the Underwriters, which will~~ correct such conflict, untrue statement or omission. (gh) ~~The Corporation will~~ To make generally available to ~~its~~ the Corporation’s security holders, ~~in each case~~ as soon as ~~practicable but not later than 60 days after the close of the period covered thereby~~practicable, an earnings ~~statements (in form complying with~~ statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably requestpromulgated thereunder. (i) ~~The Corporation will arrange or~~ To cooperate with the Underwriter in ~~arrangements~~ qualifying the Purchased Securities for ~~the qualification of the Notes for~~ offer and sale under the securities or “blue sky” laws of such jurisdictions as ~~you designate and will continue such qualifications~~ the Underwriter may reasonably request; provided that in ~~effect so long as required for the distribution; provided, however, that~~ no event shall the Corporation ~~shall not~~ be ~~required~~ obligated to qualify ~~as a foreign corporation or~~ to ~~file~~ do business in any ~~general consents~~ jurisdiction where it is not now so qualified, to take any action which would subject it to service of process ~~under~~ in suits, other than those arising out of the ~~laws~~ offering or sale of the Purchased Securities, in any ~~state~~ jurisdiction where it is not now so subject, to qualify in any jurisdiction as a broker-dealer or to subject itself to any taxing authority where it is not now so subject. (j) ~~The~~ During the period of five years from the date hereof, to supply to the Underwriter, copies of such financial statements and other periodic and special reports as the Corporation ~~will~~ may from time to time distribute generally to its lenders or to the holders of any class of its securities registered under Section 12 of the Exchange Act and to furnish to the Underwriter a copy of each annual or other report it shall be required to file with the Commission. (k) To pay all of its own expenses ~~incident to~~ incurred in connection with the performance of its obligations under this Agreement, and the Corporation will pay, or reimburse if paid by the Underwriter, whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, all reasonable costs and expenses incident to the performance of the obligations of the Corporation under this Agreement, including those relating to (i) the preparation, printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments exhibits thereto, ~~of any~~ each Preliminary Prospectus, of the Prospectus, of any ~~Permitted~~ Issuer Free Writing Prospectus and any amendments or supplements thereto, ~~(vi) any fees charged by independent rating agencies for rating~~ and the ~~Notes~~printing of this Agreement, (~~vii~~ii) ~~any fees~~ the preparation and ~~expenses in connection with the listing~~ delivery of the ~~Notes on~~ Purchased Securities to the ~~New York Stock Exchange~~Underwriter, ~~(viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x)~~ including the costs and expenses of any trustee, registrar, transfer agent and any agent thereof, including any reasonable fees and disbursements of counsel therefor, (iii) the ~~Corporation relating~~ registration or qualification of the Purchased Securities for offer and sale under the securities or “blue sky” laws of the various jurisdictions referred to ~~investor presentations~~ in subsection (i) above, including the reasonable fees and disbursements of counsel for the Underwriter in connection therewith and the preparation and printing of legal investment and preliminary and supplementary “blue sky” memoranda, (iv) the furnishing to the Underwriter of copies of the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements thereto, and of the several documents required by this Section to be so furnished, including costs of shipping and mailing, (v) the listing of the Purchased Securities on any securities exchange and (vi) the furnishing to the Underwriter of copies of all reports and information required by Section 7(j) above, including costs of shipping and mailing. (l) During the period beginning on the date of this Agreement and continuing to and including December 31, 2012, not to, directly or indirectly, (i) offer, pledge, sell or contract to sell any Equity Securities or any securities convertible into or exchangeable or exercisable for or repayable with Equity Securities (the “~~road show” undertaken in connection with~~ Lock-Up Securities”); (ii) sell any option or contract to purchase any Lock-Up Securities; (iii) purchase any option or contract to sell any Lock-Up Securities; (iv) grant any option, right or warrant for the ~~marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses~~ sale of any ~~consultants engaged~~ Lock-Up Securities; (v) otherwise dispose of or transfer any Lock-Up Securities; (vi) file a registration statement related to the Lock-Up Securities; or (vii) enter into any swap or other agreement that transfers, in ~~connection with~~ whole or in part, the ~~road show presentations with~~ economic consequence of ownership of any Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of Equity Securities or other securities, in cash or otherwise (other than (x) the ~~prior approval~~ issuance of securities pursuant to the Agreement and Plan of Merger dated October 16, 2011, by and among the Corporation, ~~travel~~ Sherpa Merger Sub, Inc., Sherpa Acquisition, LLC, El Paso Corporation, Sirius Holdings Merger Corporation and ~~lodging expenses~~ Sirius Merger Corporation, (y) the issuance of securities to holders of outstanding 43/4% trust convertible preferred securities of El Paso Energy Capital Trust I or (z) the issuance of securities pursuant to equity plans, programs or arrangements described in the Pricing Disclosure Package and the Prospectus existing on, or upon the conversion or exchange of convertible or exchangeable securities, or the exercise of warrants, outstanding as of, the date of this Agreement), without the prior written consent of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Underwriter.

Appears in 1 contract

Samples: Underwriting Agreement (Kinder Morgan, Inc.)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will cause ~~any~~ the Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, ~~any~~ the Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a the Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a the Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act ~~Regulations~~Regulations (“Rule 433”); any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein is called a the “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat ~~each~~ the Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to ~~any~~ the Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a pricing term sheet specifying the terms of the Notes not contained in ~~any~~ the Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule ~~433(b) of the 1933 Act Regulations~~ 433 prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a the Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in ~~arrangements~~ arrangements, if necessary, for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of ~~any~~ the Preliminary Prospectus, of the Prospectus, of ~~any~~ the Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, Inc., (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes~~ Debentures (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Debentures is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the ~~Notes~~ Debentures that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the ~~Notes~~ Debentures that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the ~~Notes~~ Debentures not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the ~~Notes~~ Debentures for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the ~~Notes~~Debentures, (iii) the issuance and delivery of the ~~Notes~~ Debentures as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Debentures under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the ~~Notes~~Debentures, (vii) any fees and expenses in connection with the listing of the ~~Notes~~ Debentures on the New York Stock Exchange, Inc. (the “NYSE”), (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the ~~Notes~~ Debentures with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the ~~Notes~~Debentures, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x). (k) The Corporation will use commercially reasonable efforts to effect the listing of the Debentures on the NYSE within 30 days of the date hereof. (l) During the period beginning from the date of this Agreement and continuing to and including 30 days after the date hereof, the Corporation will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities of the Corporation which mature more than one year after the Closing Date and which are substantially similar to the Debentures. For the avoidance of doubt, the foregoing sentence shall not restrict the offer, sale, contract to sell or disposition by the Corporation of Duke Energy Internotes offered pursuant to a Prospectus Supplement dated November 13, 2012 and an accompanying Prospectus dated September 29, 2010.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly of the filing of any amendment (and effectiveness thereof) or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the ~~Prospectus~~ Prospectus, of the filing of any Rule 462(b) registration statement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ Shares is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Shares is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the ~~Notes~~ Shares for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the ~~preparation and printing of certificates for the Notes, (iii) the~~ issuance and delivery of the ~~Notes~~ Shares as specified ~~herein~~herein (other than any transfer taxes), (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Shares under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~6(f) and in connection with the preparation of ~~the~~ any Blue Sky Survey, such fees not to exceed $5,000, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (~~vi) any fees charged by independent rating agencies for rating the Notes, (vii~~v) any fees and expenses in connection with the listing of the ~~Notes~~ Shares on the New York Stock Exchange, (~~viii~~vi) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, Inc., (ixvii) the costs of any depository arrangements for the ~~Notes~~ Shares with DTC or any successor depositary and (xviii) the costs and expenses of the Corporation relating to investor presentations on any “"road show” " undertaken in connection with the marketing of the offering of the ~~Notes~~Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the ~~Underwriters~~ Representatives and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (xviii). (h) During a period of 90 days from the date of the Prospectus, the Corporation will not, without the prior written consent of the Representatives, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer, dispose of, directly or indirectly, any Shares or any securities convertible into or exercisable or exchangeable for Shares or enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Shares, whether any such swap or transaction is to be settled by delivery of Shares or other securities, in cash or otherwise; provided, however, that the foregoing shall not apply to any securities or options to purchase any securities granted or sold pursuant to any employee or director compensation plans of the Corporation or employee or other investment plans of the Corporation in effect on the date of this Agreement. (i) The Corporation will use its best efforts to maintain the listing of the Shares on the New York Stock Exchange.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust V)

Covenants of the Corporation. The Corporation covenants ~~and agrees~~ with the ~~several Underwriters~~ Agents that: (a) ~~The~~ prior to the Closing Time, the Corporation ~~will cause any Preliminary Prospectus~~ shall allow the Agents the opportunity to conduct required due diligence and to obtain, acting reasonably, satisfactory results from such due diligence and in particular, the Corporation shall allow the Agents and Agents’ Counsel to conduct all due diligence which the Agents may reasonably require in order to confirm the Documents and the ~~Prospectus~~ Public Record are accurate, complete and current in all material respects and to fulfill the Agents’ obligations as a registrant under Applicable Securities Laws and, in this regard, without limiting the scope of the due diligence inquiries that the Agents may conduct, the Corporation shall make available its senior management, directors and auditors to participate in one or more due diligence sessions (the “Due Diligence Sessions”) to answer in person any questions that the Agents may have and the Agents shall distribute a list of written questions to be ~~filed pursuant to,~~ answered in advance of such Due Diligence Sessions and ~~in compliance with, Rule 424(b) of~~ the ~~1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement~~ Corporation shall provide oral responses to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such ~~stop order and to obtain as soon as possible its lifting, if issued.~~questions; (b) ~~If at~~ if any ~~time when a prospectus relating to the Notes (or the notice referred to in Rule 173(a)~~ of the ~~1933 Act Regulations) is required to be delivered under~~ facts or information underlying or supporting the ~~1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue~~ statement ~~of a material fact, or omit to state any material fact necessary to make the statements therein,~~ provided in the ~~light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act~~Corporation’s Due Diligence Session Responses have changed, the Corporation ~~promptly will prepare and file~~ shall provide the Agents with ~~the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14~~ prompt notice of the ~~1934 Act which will correct~~ particulars of any such ~~statement or omission or which will effect such compliance.~~changes; (c) ~~The Corporation~~it will comply with all the obligations to be performed by it, ~~during the period when a prospectus relating~~ and all of its covenants and agreements, under and pursuant to the ~~Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.~~Material Agreements; (d) ~~Without~~ during the period commencing on the date of this Agreement and ending at the Closing Time, it will promptly provide to the Agents, for review by the Agents and Agents’ Counsel, prior ~~consent~~ to filing or issuance of the ~~Underwriters~~same, ~~the Corporation has not made and will not make~~ any ~~offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations~~proposed public disclosure document, ~~other than a Permitted Free Writing Prospectus; each Underwriter~~including without limitation, ~~severally and not jointly, represents and agrees that, without the prior consent~~ any financial statements of the Corporation, ~~it has not made~~ report to shareholders, information circular or any press release or material change report and ~~will not make~~ any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed press release issued by the Corporation ~~pursuant~~ concerning the Offered Securities is to include the following or substantially similar legend: “NOT FOR DISTRIBUTION TO UNITED STATES NEWSWIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES.” and applicable legends required under Rule ~~433~~ 135e of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.U.S. Securities Act; (e) ~~The Corporation agrees to prepare a term sheet specifying~~ during the ~~terms~~ period commencing on the date of this Agreement and ending at the Closing Time, promptly notify the Agents in writing of any of the ~~Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved~~ representations or warranties made by the ~~Representatives on behalf of the Underwriters,~~ Corporation in this Agreement being no longer true and ~~to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof.~~correct; (f) ~~The Corporation agrees that if at any time following~~ during the ~~issuance~~ period commencing on the date of ~~a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with~~ this Agreement and ending on the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleadingClosing Time, the Corporation will ~~give prompt notice thereof to~~ promptly inform the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close Agents of the ~~period covered thereby~~full particulars of any material change (actual, ~~earnings statements~~ anticipated, contemplated or threatened) in the business, affairs, operations, capital or condition (~~in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act~~financial or otherwise) ~~covering (i) a twelve-month period beginning not later than the first day~~ of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distributionits properties or assets; provided, however, that if the Corporation is uncertain as to whether a material change, change, occurrence or event of the nature referred to in this Section 5(f) has occurred, the Corporation shall ~~not be required~~ promptly inform the Agents of the full particulars of the occurrence giving rise to ~~qualify~~ the uncertainty and shall consult with the Agents as to whether the occurrence is of such a ~~foreign corporation~~ nature; (g) during the period commencing on the date of this Agreement and ending at the Closing Time, the Corporation will promptly inform the Agents of the receipt by the Corporation of (i) any communication of a material nature from any Securities Commission or similar regulatory authority, any stock exchange or any other Governmental Authority relating to ~~file~~ the Corporation or the distribution of the Offered Securities, and (ii) the issuance by any ~~general consents to service of process under the laws~~ Securities Commission or similar regulatory authority, any stock exchange or any other Governmental Authority of any ~~state where~~ order to cease or suspend trading of any securities of the Corporation or of the institution or threat of institution of any proceedings for that purpose; (h) the Corporation will promptly, and in any event within any applicable time limitation, comply to the reasonable satisfaction of the Agents and Agents’ Counsel with Applicable Securities Laws of the Selling Jurisdictions in which it is ~~not now so subject.~~a reporting issuer with respect to any material change, change, occurrence or event of the nature referred to in Sections 5(f) and 5(g) above; (i) the Corporation will use the net proceeds from the Offering to advance the Corporation’s wholly-owned La Guitarra Mine located in the Temascaltapec Mining District of Mexico and the Corporation’s Xxxxxxx/San Xxxxxxx Mining Camp in southwestern Sinaloa, Mexico and for general working capital purposes; and (j) ~~The~~ as soon as reasonably possible, and in any event by the Closing Date, the Corporation ~~will pay~~ shall take all ~~expenses incident~~ such steps as may reasonably be necessary to enable the ~~performance of its obligations under this Agreement including (i)~~ Offered Securities to be offered for sale and sold on a private placement basis to Subscribers in the ~~printing and filing~~ Selling Jurisdictions through the Agents or any other investment dealers or brokers registered in any of the ~~Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery~~ Selling Jurisdictions by way of the ~~Notes as specified herein, (iv) the fees and disbursements~~ exemptions set forth in Applicable Securities Laws of ~~counsel for the Underwriters in connection with the qualification~~ each of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Selling Jurisdictions.

Appears in 1 contract

Samples: Agency Agreement (Silvermex Resources Inc)

Covenants of the Corporation. The Corporation covenants and agrees with the several ~~Underwriters~~ Purchasers that: (a) ~~The Corporation~~ It will promptly cause ~~any Preliminary Prospectus and~~ the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by with the Commission ~~of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain~~ as ~~soon as possible its lifting, if issued~~required by Rule 424. (b) ~~If at any time when~~ For as long as a prospectus relating to the Purchased Notes ~~(or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ is required to be delivered under the ~~1933 Act~~ Act, if any event ~~occurs as a result~~ relating to or affecting the Corporation or of which the ~~Pricing Disclosure Package~~ Corporation shall be advised in writing by the Purchasers shall occur which, in the Corporation's opinion, should be set forth in a supplement or amendment to the Prospectus in order either to make the Prospectus comply with the requirements of the Act or which would require the making of any change in the Prospectus so that as ~~then amended or supplemented would include an~~ thereafter delivered to purchasers such Prospectus will not contain any untrue statement of a material ~~fact,~~ fact or omit to state ~~any~~ a material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading, the Corporation will promptly amend or ~~if it is necessary at any time to amend the Pricing Disclosure Package or~~ supplement the Prospectus ~~to comply with the 1933 Act, the Corporation promptly will prepare~~ by either (i) preparing and ~~file~~ filing with the Commission supplement(s) or amendment(s) to the Prospectus, or (ii) making an ~~amendment~~appropriate filing pursuant to the Exchange Act, which will supplement or ~~an appropriate document pursuant to Section 13~~ amend the Prospectus so that, as supplemented or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwritersamended, the ~~Corporation has not made and will not make any offer relating~~ Prospectus when the Prospectus is delivered to ~~the Notes that would constitute~~ a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and purchaser will comply with the ~~requirements of Rule 433 applicable to~~ Act and will not contain any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances ~~then prevailing~~under which they were made, not misleading. Prior to any such filing, the Corporation ~~will~~ shall give ~~prompt~~ oral notice ~~thereof~~ to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omissionPurchasers. (gc) ~~The~~ Not later than 45 days after the end of the 12-month period beginning at the end of the fiscal quarter of the Corporation in which the Closing Date occurs, the Corporation will make generally available to its security ~~holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby,~~ holders an earnings ~~statements~~ statement (~~in form complying with the provisions of Rule 158 under the 1933 Act,~~ which need not be ~~certified by independent certified public accountants unless required by the 1933 Act~~audited) covering ~~(i) a twelve~~such 12-month period ~~beginning not later than~~ which will satisfy the ~~first day~~ provisions of Section 11(a) of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this AgreementAct. (hd) The Corporation will furnish to ~~you, without charge,~~ you copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such following documents, in each case as soon as available after filing and in such quantities as you reasonably ~~request~~request (i) the Registration Statement relating to the Notes as originally filed and all pre-effective amendments thereto (at least one of which will be signed and will include all exhibits except those incorporated by reference to previous filings with the Commission); (ii) each prospectus relating to the Purchased Notes; and (iii) during the time when a prospectus relating to the Purchased Notes is required to be delivered under the Act, all post-effective amendments and supplements to the Registration Statement or Prospectus, respectively (except supplements relating to securities that are not Purchased Notes). (ie) The Corporation will ~~arrange or cooperate in arrangements for~~ use its best efforts to obtain the qualification of the Purchased Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; , provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any ~~general consents~~ consent to service of process under the laws of any ~~state where it is not now so subject~~jurisdiction or to comply with any other requirements deemed by the Corporation to be unduly burdensome. (jf) During the period of five years after the Closing Date, the Corporation will furnish to you, and upon request, to each of the other Purchasers: (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, (ii) as soon as available, a copy of each report or definitive proxy statement of the Corporation filed with the Commission under the Exchange Act or mailed to shareholders, and (iii) from time to time, such other information concerning the Corporation as you may reasonably request. (g) The Corporation will pay all expenses incident to the performance of its obligations under this ~~Agreement~~ Agreement, and will reimburse the Purchasers for any expenses (including (iBlue Sky fees not exceeding $6,000 and disbursements of counsel) ~~the printing and filing~~ incurred by them in connection with qualification of the ~~Registration Statement~~ Purchased Notes for sale and determination of their eligibility for investment under the laws of such jurisdictions as you designate and the printing of ~~this Agreement and~~ memoranda relating thereto, for any ~~Blue Sky Survey, (ii) the preparation and printing of certificates~~ filing fees charged by investment rating agencies for the rating of the Purchased Notes, ~~(iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel~~ for ~~the Underwriters~~ any expenses incurred in connection with listing the ~~qualification~~ Purchased Notes on a national securities exchange and for expenses incurred in distributing prospectuses to the Purchasers, except that if this Agreement is terminated by the Purchasers under Section 6(c) hereof, the Corporation shall not be obligated to reimburse the Purchasers for any of the foregoing expenses. (h) The Corporation will not offer or sell any of its other debt securities which are substantially similar to the Purchased Notes ~~under~~ prior to ten business days after the ~~securities laws of any jurisdiction in accordance with~~ Closing Date without the ~~provisions of Section 5(i) and in connection with the preparation~~ consent of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)Purchasers.

Appears in 1 contract

Samples: Agency Agreement (Constellation Energy Corp)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will cause ~~any~~ the Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, ~~any~~ the Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a the Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a the Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act ~~Regulations~~Regulations (“Rule 433”); any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein is called a the “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat ~~each~~ the Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to ~~any~~ the Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a pricing term sheet specifying the terms of the Notes not contained in ~~any~~ the Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule ~~433(b) of the 1933 Act Regulations~~ 433 prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a the Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security ~~holders, in each case~~ holders as soon as practicable ~~but not later than 60 days after~~ an earnings statement for the ~~close~~ purposes of, and to provide the Underwriters the benefits contemplated by, the last paragraph of ~~the period covered thereby, earnings statements (in form complying with the provisions~~ Section 11(a) of ~~Rule 158 under~~ the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you may reasonably request. (i) The Corporation will arrange or cooperate in ~~arrangements~~ arrangements, if necessary, for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of ~~any~~ the Preliminary Prospectus, of the Prospectus, of ~~any~~ the Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, Inc., (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. The Corporation covenants and agrees with the ~~several Underwriters that~~Purchaser as follows: (a) ~~The~~ the Corporation will ~~cause any Preliminary Prospectus~~ comply with all filing and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings other disclosure requirements under all applicable securities laws in respect of the ~~Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.~~transactions contemplated by this Investment Agreement; (b) If at any time when a prospectus relating to the Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation ~~promptly~~ will ~~prepare and file with~~ use commercially reasonable efforts to obtain all approvals, waivers or consents from regulatory authorities or other third parties as may be required in order to permit the ~~Commission an amendment, supplement or an appropriate document pursuant~~ Corporation to ~~Section 13 or 14 of~~ complete the ~~1934 Act which will correct such statement or omission or which will effect such compliance.~~transactions contemplated hereby; (c) ~~The Corporation, during~~ the ~~period when a prospectus relating~~ Corporation will use commercially reasonable efforts to maintain the ~~Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14~~ listing of the ~~1934 Act.~~Shares on the Exchange for a period of 12 months after the Closing Date; (d) ~~Without the prior consent of the Underwriters,~~ the Corporation ~~has not made and~~ will ~~not make any offer relating~~ use commercially reasonable efforts to maintain its status as a reporting issuer under applicable securities legislation in the ~~Notes that would constitute~~ Province of British Columbia for a ~~“free writing prospectus” as defined in Rule 405~~ period of 12 months after the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.Closing Date; (e) ~~The~~ the Corporation ~~agrees to prepare~~ will, for a ~~term sheet specifying~~ period beginning on the ~~terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto~~ Closing Date and ~~approved by the Representatives~~ ending on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date ~~hereof. (f) The Corporation agrees that if at any time following~~ which is the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request.earlier of: (i) ~~The Corporation will arrange or cooperate in arrangements for~~ 24 months after the ~~qualification~~ Closing Date; and (ii) the date on which the Purchaser ceases to hold any Shares, permit a representative of the ~~Notes for sale under~~ Purchaser to attend and observe any portion of a directors’ meeting dealing with the ~~laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution~~Corporation’s infectious disease business; provided, however, that the Corporation’s obligation to provide such access shall be conditional upon such representative signing and delivering to the Corporation a non-disclosure agreement in the form attached hereto as Schedule D and shall ~~not~~ be ~~required~~ further subject to ~~qualify as a foreign corporation or to file any general consents to service of process under~~ the ~~laws of any state where it is not now so subject.~~terms contained in such non-disclosure agreement; and (jf) ~~The~~ if, during the period beginning on the Closing Date and ending one year after the Closing Date, the Corporation ~~will pay all expenses incident~~ proposes to issue Shares (a “Proposed Issuance”), the ~~performance of its obligations under this Agreement including~~ following rules shall apply: (i) subject to sub-paragraphs (iv) and (v) below, the ~~printing and filing~~ Corporation shall provide the Purchaser with written notice of the ~~Registration Statement and~~ Proposed Issuance. Such notice shall describe, to the ~~printing~~ extent possible at the date of ~~this Agreement and any Blue Sky Survey~~the notice, the terms under which the Corporation proposes to issue such Shares; (ii) the ~~preparation~~ Purchaser shall notify the Corporation of its desire to participate in the Proposed Issuance to the extent necessary to ensure that it maintains the same percentage ownership of outstanding Shares both immediately before and ~~printing~~ immediately after the completion of ~~certificates for~~ the ~~Notes~~Proposed Issuance (in each case on a fully-diluted basis). Such notification shall be provided by the Purchaser as quickly as possible and, in any event, within the time specified in the notice provided by the Corporation under sub-paragraph (i) above; (iii) if the ~~issuance~~ Purchaser provides the notice specified in sub-paragraph (ii) above, the Corporation shall, subject to compliance with the registration and ~~delivery~~ prospectus requirements of all applicable securities laws or the availability of applicable exemptions from such requirements and further subject to receipt by the Corporation of all necessary regulatory approvals, permit the Purchaser to participate in the Proposed Issuance as described in sub-paragraph (ii) above. If the Purchaser does not provide such notice by the deadline specified in the notice delivered by the Corporation under sub-paragraph (i) above, the Corporation shall be free to complete the Proposed Issuance without the participation of the ~~Notes as specified herein,~~ Purchaser provided that the Proposed Issuance is completed within 90 days after the date on which the notice required by sub-paragraph (i) above was delivered by the Corporation; (iv) in any case where this Section 7(f) requires the ~~fees and disbursements~~ Corporation to provide notice of ~~counsel~~ a Proposed Issuance to the Purchaser, the Corporation shall provide as much advanced notice of such Proposed Issuance as may be commercially reasonable in the circumstances. In the event such notice is provided less than twenty (20) days prior to completion of a Proposed Issuance, the Corporation shall be free to complete the Proposed Issuance on the date scheduled for its completion, provided that the ~~Underwriters~~ Corporation provides the Purchaser with no less than twenty (20) days from the date of such written notice within which to determine whether it wishes to participate in ~~connection with~~ such Proposed Issuance as described in sub-paragraph (ii) above. If the ~~qualification~~ Purchaser notifies the Corporation of its desire to participate in the Proposed Issuance within such 20 day period but after completion of the ~~Notes under~~ Proposed Issuance, the ~~securities laws~~ Corporation shall, subject to receipt of any ~~jurisdiction~~ necessary regulatory approvals, permit the Purchaser to subsequently purchase Shares, on the same financial terms and conditions as such Shares were issued in ~~accordance with~~ the ~~provisions~~ Proposed Issuance, as are necessary to ensure that Purchaser maintains the same percentage ownership of ~~Section 5(i)~~ outstanding Shares both immediately before and ~~in connection with~~ immediately after the ~~preparation~~ completion of the ~~Blue Sky Survey, such fees not to exceed $5,000,~~ Proposed Issuance (in each case on a fully-diluted basis). (v) this Section 7(f) shall not apply to any Shares issued in connection with: (A) the ~~printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto,~~ exercise of any ~~Preliminary Prospectus, of~~ options or other securities outstanding from time to time under the ~~Prospectus,~~ Corporation’s stock option or other incentive plans; (B) the exercise of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses other convertible securities of the Corporation ~~relating to investor presentations on any “road show” undertaken in connection with the marketing~~ outstanding as of the ~~offering~~ Closing Date; (C) the acquisition of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of assets or securities by the Corporation; or (D) any amalgamation, ~~travel and lodging expenses of~~ arrangement, merger or other business combination transaction entered into by the ~~Underwriters and officers of~~ Corporation. For greater certainty, the parties acknowledge that nothing in this Section 7(f) shall be interpreted so as to require the Corporation ~~and~~ to file a registration statement, prospectus or similar document under any ~~such consultants, and~~ applicable securities laws in order to permit the ~~cost of~~ Purchaser to participate in any ~~aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x)~~Proposed Issuance.

Appears in 1 contract

Samples: Investment Agreement (Response Biomedical Corp)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will ~~cause any Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and~~ advise ~~the Underwriters~~ you promptly ~~of the filing~~ of any amendment (and effectiveness thereof) or ~~supplement to~~ supplementation of the Registration ~~Statement, any Preliminary Prospectus~~ Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes (or the notice referred to in Rule 173(a) of the 1933 Act Regulations)~~ Bonds is required to be delivered under the 1933 Act any event occurs as a result of which ~~the Pricing Disclosure Package or~~ the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend ~~the Pricing Disclosure Package or~~ the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Bonds is required to be delivered under the 1933 Act, will ~~timely~~ file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of ~~Rule 158 under~~ Section 11(a) of the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s 's fiscal quarter next following the date of this Agreement. (he) The Corporation will furnish to you, without charge, copies of the Registration Statement ~~(four~~ ( of which will be signed and will include all exhibits other than those incorporated by reference), ~~the Pricing Disclosure Package and~~ the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (if) The Corporation will arrange or cooperate in arrangements for the qualification of the ~~Notes~~ Bonds for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (jg) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and ~~any~~ the Blue Sky Survey, (ii) the ~~preparation and printing of certificates for the Notes, (iii) the~~ issuance and delivery of the ~~Notes~~ Bonds as specified herein, (iviii) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Bonds under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~5(f) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (viv) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, ~~of any Preliminary Prospectus,~~ and of the ~~Prospectus, of any Permitted Free Writing~~ Prospectus and any amendments or supplements thereto, (viv) any fees charged by independent rating agencies for rating the ~~Notes~~Bonds, (~~vii~~vi) any fees and expenses in connection with the listing of the ~~Notes~~ Bonds on the New York Stock ~~Exchange,~~ Exchange and (~~viii~~vii) any filing fee required by the ~~Financial Industry Regulatory Authority~~National Association of Securities Dealers, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).Inc.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust V)

Covenants of the Corporation. The Corporation covenants and agrees with the several Underwriters that: (a) The Corporation will cause ~~any~~ the Preliminary Prospectus and the Prospectus to be filed pursuant to, and in compliance with, Rule 424(b) of the 1933 Act Regulations, and advise the Underwriters promptly of the filing of any amendment or supplement to the Registration Statement, ~~any~~ the Preliminary Prospectus or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the ~~Notes~~ Shares (or the notice referred to in Rule 173(a) of the 1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs as a result of which the Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the ~~Notes~~ Shares is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a the Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the ~~Notes~~ Shares that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a the Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act ~~Regulations~~Regulations (“Rule 433”); any such free writing prospectus (which shall include the pricing term sheet discussed in Section ~~5(e~~6(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B II hereto and herein is called a the “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat ~~each~~ the Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to ~~any~~ the Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a pricing term sheet specifying the terms of the ~~Notes~~ Shares not contained in ~~any~~ the Preliminary Prospectus, substantially in the form of Schedule C III hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule ~~433(b) of the 1933 Act Regulations~~ 433 prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a the Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the ~~effective date~~ Effective Date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you may reasonably request. (i) The Corporation will arrange or cooperate in ~~arrangements~~ arrangements, if necessary, for the qualification of the ~~Notes~~ Shares for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this ~~Agreement~~ Agreement, including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the ~~preparation and printing of certificates for the Notes, (iii) the~~ issuance and delivery of the ~~Notes~~ Shares, as specified herein, (iii) any fees associated with the filing of the Certificate of Designations with the Secretary of State of the State of Delaware and the cost of preparing the Shares, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the ~~Notes~~ Shares under the securities laws of any jurisdiction in accordance with the provisions of Section ~~5(i~~6(i) hereof and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of ~~any~~ the Preliminary Prospectus, of the Prospectus, of ~~any~~ the Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the ~~Notes~~Shares, (vii~~) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii~~) any filing fee required by the Financial Industry Regulatory Authority, Inc., (ixviii) the costs of any depository arrangements for the ~~Notes~~ Shares with DTC or any successor ~~depositary~~ depositary, (ix) any fees and expenses incurred in connection with the preparation and filing of the Registration Statement relating to the Shares and, if applicable, any expenses and application fees related to the listing of the Shares on the New York Stock Exchange and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the ~~Notes~~Shares, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x). (k) During a period of 30 days from the date of the Prospectus, the Corporation will not, without the prior written consent of the Representatives, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer, dispose of, directly or indirectly, any shares of the Corporation’s securities that are substantially similar to the Shares or any securities convertible into or exercisable or exchangeable for Shares. (l) The Corporation will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Corporation to facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares to be issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Shares to be issued and sold pursuant to this Agreement other than the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy CORP)

Covenants of the Corporation. (1) The Corporation covenants and agrees with the ~~several~~ Underwriters that: (a) ~~The~~ the Corporation will ~~cause~~ advise the Underwriters, promptly after receiving notice thereof, of the time when each Offering Document or Issuer Free Writing Prospectus has been filed, when any ~~Preliminary~~ Dual Prospectus Receipt has been obtained and when the Registration Statement becomes effective, and will provide evidence satisfactory to the Underwriters of each such filing and a copy of each such Dual Prospectus Receipt; (b) between the date hereof and the ~~Prospectus to be filed pursuant to, and in compliance with, Rule 424(b)~~ date of completion of the ~~1933 Act Regulations~~Distribution of the Offered Shares, ~~and~~ the Corporation will advise the ~~Underwriters~~ Underwriters, promptly after receiving notice or obtaining knowledge thereof, of: (i) the issuance by any Canadian Securities Commission or the SEC of any order suspending or preventing the use of any of the ~~filing of~~ Offering Documents or any ~~amendment or supplement to~~ Issuer Free Writing Prospectus, including without limitation the ~~Registration Statement, any Preliminary Prospectus or the Prospectus and of the institution~~ issuance by the ~~Commission~~ SEC of any stop order ~~proceedings in respect~~ suspending the effectiveness of the Registration Statement, or, to the knowledge of the Corporation, the threatening of any such order; (ii) the issuance by any Canadian Securities Commission, the SEC, the TSX or the NYSE of any order having the effect of ceasing or suspending the Distribution of the Common Shares or the trading in any securities of the Corporation, or of the institution or, to the knowledge of the Corporation, threatening of any proceeding for any such purpose; or (iii) any requests made by any Canadian Securities Commission or the SEC for amending or supplementing any of the Offering Documents or any Issuer Free Writing Prospectus or for additional information; and the Corporation will use its best efforts to prevent the issuance of any order referred to in subparagraph (b)(i) above or subparagraph (b)(ii) above and, if any such ~~stop~~ order ~~and~~ is issued, to obtain the withdrawal thereof at the earliest possible time; (c) the Corporation will use its best efforts to obtain the conditional listing of the Offered Shares on the TSX by the Closing Time, subject only to customary listing conditions, and the Corporation will use its best efforts to have the Offered Shares listed and admitted and authorized for trading on the NYSE by the Closing Time; (d) as soon as ~~possible~~ practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the U.S. Securities Act), the Corporation will make generally available to its ~~lifting, if issued~~security holders and to the Underwriters an earnings statement or statements of the Corporation and its subsidiaries which will satisfy the provisions of Section 11(a) of the U.S. Securities Act and Rule 158 under the U.S. Securities Act; and (e) the Corporation will use the net proceeds from the Offering as described in the Final Canadian Prospectus. (b2) Prior to the completion of the Distribution of the Offered Shares, the Corporation will file all documents required by it to be filed with or furnished to the Canadian Securities Commissions and the SEC pursuant to Applicable Securities Laws. (3) If at any time ~~when a prospectus relating~~ following the distribution of any Written Testing-the-Waters Communication and prior to the ~~Notes (or the notice referred to in Rule 173(a)~~ distribution of the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any~~ Prospectuses there occurred or occurs an event ~~occurs~~ or development as a result of which ~~the Pricing Disclosure Package~~ such Written Testing-the-Waters Communication included or ~~the Prospectus as then amended or supplemented~~ would include an untrue statement of a material ~~fact,~~ fact or omitted or would omit to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances ~~under which they were made, not misleading, or if it is necessary~~ existing at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance. (c) The Corporation, during the period when a prospectus relating to the Notes is required to be delivered under the 1933 Act, will timely file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act. (d) Without the prior consent of the Underwriters, the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Corporation pursuant to Rule 433 of the 1933 Act Regulations; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. (e) The Corporation agrees to prepare a term sheet specifying the terms of the Notes not contained in any Preliminary Prospectus, substantially in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailingsubsequent time, not misleading, the Corporation will ~~give prompt notice thereof to~~ promptly notify the Underwriters ~~and~~and will promptly amend or supplement, ~~if requested by the Underwriters~~at its own expense, ~~will prepare and furnish without charge~~ such Written Testing-the-Waters Communication to ~~each Underwriter a free writing prospectus~~ eliminate or ~~other document, the use of which has been consented to by the Underwriters, which will~~ correct such ~~conflict,~~ untrue statement or omission. (g4) ~~The~~ Except as contemplated by this Agreement, the Corporation will ~~make generally available~~ not, without the prior written consent of BMO and Canaccord (not to ~~its security holders~~be unreasonably withheld) on behalf of the Underwriters, directly or indirectly issue, offer, pledge, sell, contract to sell, contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer, lend or dispose of directly or indirectly, any Common Shares or securities or other financial instruments convertible into or having the right to acquire Common Shares or enter into any agreement or arrangement under which the Corporation would acquire or transfer to another, in ~~each case as soon as practicable but not later than 60 days after the close~~ whole or in part, any of the economic consequences of ownership of Common Shares, whether that agreement or arrangement may be settled by the delivery of Common Shares or other securities or cash, or agree to become bound to do so, or disclose to the public any intention to do so, during the period ~~covered thereby~~from the date hereof and ending 90 days following the Closing Date; provided that, ~~earnings~~ notwithstanding the foregoing, the Corporation may (i) issue Common Shares or securities convertible into Common Shares pursuant to an equity compensation plan in effect on the date hereof; and (ii) issue Common Shares issuable pursuant to rights or obligations under agreements, securities or instruments outstanding on the date hereof. In addition, until the expiry of such 90 day period, the Corporation shall not file a prospectus under Canadian Securities Laws or a registration statement under the U.S. Securities Act in connection with any transaction by the Corporation or any person that is prohibited pursuant to the foregoing, except as pursuant to the Offering and for registration statements ~~(in form complying with the provisions of Rule 158~~ on Form S-8 relating to employee benefit plans or a base shelf prospectus under applicable Canadian Securities Laws and under the 1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this Agreement. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Underwriting Agreement (NexGen Energy Ltd.)

Covenants of the Corporation. The Corporation hereby covenants ~~and agrees with~~ to the ~~several Underwriters that~~Agent that the Corporation: (a) ~~The Corporation~~ will ~~cause any Preliminary~~ advise the Agent, promptly after receiving notice thereof, of the time when the Final Prospectus and any Supplementary Material has been filed and receipts therefor have been obtained pursuant to the Passport System and will provide evidence reasonably satisfactory to the Agent of each such filing and copies of such receipts; (b) will advise the Agent, promptly after receiving notice or obtaining knowledge thereof, of: (i) the issuance by any Canadian Securities Regulators of any order suspending or preventing the use of the Prospectus ~~to be filed pursuant to~~or any Supplementary Material; (ii) the institution, ~~and~~ threatening or contemplation of any proceeding for any such purposes; (iii) any order, ruling, or determination having the effect of suspending the sale or ceasing the trading in ~~compliance with, Rule 424(b)~~ any securities of the ~~1933 Act Regulations~~Corporation (including the Offered Shares) has been issued by any Securities Regulator or the institution, ~~and advise the Underwriters promptly of the filing~~ threatening or contemplation of any ~~amendment~~ proceeding for any such purposes; or (iv) any requests made by any Canadian Securities Regulators for amending or ~~supplement to~~ supplementing the ~~Registration Statement, any~~ Preliminary Prospectus or the Final Prospectus ~~and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement~~or for additional information, and will use its ~~best~~ commercially reasonable efforts to prevent the issuance of any ~~such stop~~ order ~~and to obtain as soon as possible its lifting, if issued. (b) If at any time when a prospectus relating to the Notes (or the notice~~ referred to in ~~Rule 173(a~~(i) of above and, if any such order is issued, to obtain the ~~1933 Act Regulations) is required to be delivered under the 1933 Act any event occurs~~ withdrawal thereof as ~~a result of which the Pricing Disclosure Package or the Prospectus~~ quickly as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Pricing Disclosure Package or the Prospectus to comply with the 1933 Act, the Corporation promptly will prepare and file with the Commission an amendment, supplement or an appropriate document pursuant to Section 13 or 14 of the 1934 Act which will correct such statement or omission or which will effect such compliance.possible; (c) ~~The Corporation,~~ during the ~~period when a prospectus relating~~ distribution of the Offered Shares, the Corporation will provide to the ~~Notes is required~~ Agent drafts of any press releases of the Corporation for review by the Agent and the Agent's counsel prior to issuance, and any press release issued concerning the Offering shall include the following: “This news release does not constitute an offer to sell or a solicitation of an offer to sell any of the securities in the United States. The securities have not been and will not be ~~delivered~~ registered under the ~~1933~~ United States Securities Act of 1933, as amended (the “U.S. Securities Act, ”) or any state securities laws and may not be offered to sold within the United States or to U.S. Persons unless registered under the U.S. Securities Act and applicable state securities laws or an exemption from such registration is available.” provided that any such review will be completed by the Agent and the Agent’s counsel in a timely ~~file all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.~~manner; (d) ~~Without~~ during the ~~prior consent~~ distribution of the ~~Underwriters~~Offered Shares, no press release will be issued in the Corporation has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Corporation, it has not made and will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 of the 1933 Act Regulations, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed United States by the Corporation ~~pursuant to Rule 433 of~~ concerning the ~~1933 Act Regulations~~Offering; any such free writing prospectus (which shall include the pricing term sheet discussed in Section 5(e) below), the use of which has been consented to by the Corporation and the Underwriters, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.” The Corporation represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.and (e) ~~The Corporation agrees to prepare a term sheet specifying~~ will use the ~~terms~~ net proceeds of the ~~Notes not contained~~ Offering contemplated herein in ~~any Preliminary Prospectus,~~ substantially the manner and subject to the qualifications described in the form of Schedule C hereto and approved by the Representatives on behalf of the Underwriters, and to file such pricing term sheet as an “issuer free writing prospectus” pursuant to Rule 433(b) of the 1933 Act Regulations prior to the close of business two business days after the date hereof. (f) The Corporation agrees that if at any time following the issuance of a Permitted Free Writing Final Prospectus any event occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information (not superseded or modified as of the Effective Date) in the Registration Statement, the Pricing Disclosure Package 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 light of the circumstances then prevailing, not misleading, the Corporation will give prompt notice thereof to the Underwriters and, if requested by the Underwriters, will prepare and furnish without charge to each Underwriter a free writing prospectus or other document, the use of which has been consented to by the Underwriters, which will correct such conflict, statement or omission. (g) The Corporation will make generally available to its security holders, in each case as soon as practicable but not later than 60 days after the close of the period covered thereby, earnings statements (in form complying with the provisions of Rule 158 under the ~~1933 Act, which need not be certified by independent certified public accountants unless required by the 1933 Act) covering (i) a twelve-month period beginning not later than the first day~~ heading “Use of the Corporation’s fiscal quarter next following the effective date of the Registration Statement and (ii) a twelve-month period beginning not later than the first day of the Corporation’s fiscal quarter next following the date of this AgreementProceeds”. (h) The Corporation will furnish to you, without charge, copies of the Registration Statement (four of which will include all exhibits other than those incorporated by reference), the Pricing Disclosure Package and the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request. (i) The Corporation will arrange or cooperate in arrangements for the qualification of the Notes for sale under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Corporation shall not be required to qualify as a foreign corporation or to file any general consents to service of process under the laws of any state where it is not now so subject. (j) The Corporation will pay all expenses incident to the performance of its obligations under this Agreement including (i) the printing and filing of the Registration Statement and the printing of this Agreement and any Blue Sky Survey, (ii) the preparation and printing of certificates for the Notes, (iii) the issuance and delivery of the Notes as specified herein, (iv) the fees and disbursements of counsel for the Underwriters in connection with the qualification of the Notes under the securities laws of any jurisdiction in accordance with the provisions of Section 5(i) and in connection with the preparation of the Blue Sky Survey, such fees not to exceed $5,000, (v) the printing and delivery to the Underwriters, in quantities as hereinabove referred to, of copies of the Registration Statement and any amendments thereto, of any Preliminary Prospectus, of the Prospectus, of any Permitted Free Writing Prospectus and any amendments or supplements thereto, (vi) any fees charged by independent rating agencies for rating the Notes, (vii) any fees and expenses in connection with the listing of the Notes on the New York Stock Exchange, (viii) any filing fee required by the Financial Industry Regulatory Authority, (ix) the costs of any depository arrangements for the Notes with DTC or any successor depositary and (x) the costs and expenses of the Corporation relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Corporation, travel and lodging expenses of the Underwriters and officers of the Corporation and any such consultants, and the cost of any aircraft chartered in connection with the road show; provided, however, the Underwriters shall reimburse a portion of the costs and expenses referred to in this clause (x).

Appears in 1 contract

Samples: Agency Agreement

Common use of Covenants of the Corporation Clause in Contracts