Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters that: (a) Not later than the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form. (b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request. (c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued. (d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter. (e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act. (f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome. (g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits. (h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date. (i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 2 contracts
Samples: Underwriting Agreement (Entergy Gulf States Inc), Underwriting Agreement (Entergy Gulf States Capital I)
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Company and the Closing Date, Administrative Trustees on behalf of the Company Trust will deliver to prepare and timely file with the Representatives Commission under Rule 424(b) under the Act a copy Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(dc) During The Offerors will cooperate with you and your counsel in order to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), PROVIDED that neither Offeror shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if for any other reason it shall be necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will prepare and file with the Commission an appropriate amendment to the activities Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not 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 Underwriters (in which case circumstances when it is so delivered, not misleading, or so that the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(ef) The Company will, on behalf of the Trust, Offerors will make generally available to the Trust's their security holders, as soon as practicableit is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, thereunder and will otherwise cooperate advise you in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of writing when such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomestatement has been so made available.
(g) The Company will, except for five years from the First Closing Date, deliver to each Underwriter, as herein providedsoon as they are available, pay copies of its annual report and copies of all feesother documents, expenses reports and taxes incident information furnished by the Company to its security holders or filed with any securities exchange pursuant to the performance requirements of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) such exchange or with the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities Commission pursuant to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (Act or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting AgreementAct. The Company shall will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in any event be liable to the Underwriters for damages on account of loss of anticipated profitsCompany's financial statements.
(h) Each The Offerors will apply the net proceeds from the sale of the Offerors will not offer, sell, contract to sell or otherwise dispose Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of any Preferred Securities, any other beneficial interests Proceeds" in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSEcomply with all registration, subject to notice filing and reporting requirements of issuance, and to be registered under the Exchange Act; if Act and the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActAmerican Stock Exchange.
Appears in 2 contracts
Samples: Underwriting Agreement (Spectrum Capital Trust Ii), Underwriting Agreement (Spectrum Capital Trust I)
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees covenant with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors will notify the Closing DateRepresentative immediately, and confirm the Company will deliver notice in writing, (i) of the effectiveness of any amendment to the Representatives a copy Registration Statement, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement in or the form initiation of any proceedings for that it became effective or a conformed copy thereofpurpose. The Offerors will make every reasonable effort to prevent the issuance of any stop order and, certified by an officer of if any stop order is issued, to obtain the Company to be in such formlifting thereof at the earliest possible moment.
(b) The Company Offerors will deliver give the Representative notice of their intention to file or prepare (i) any amendment to the Underwriters as many copies of Registration Statement or (ii) any amendment or supplement to the Prospectus (including any revised prospectus which the Offerors propose for use by the Underwriters in connection with the offering of the Preferred Securities which differs from the prospectus on file at the Commission at the date hereof, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), and will furnish the Representative with copies of any amendments such amendment or supplements thereto) 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 Representative or counsel for the Underwriters may shall reasonably requestobject. Subject to the foregoing, the Offerors will promptly prepare the supplement to Prospectus Supplement to reflect the terms of the Preferred Securities and the terms of the offering. The Offerors will file the Prospectus Supplement pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement.
(c) The Company Offerors will cause deliver to the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly Representative as many signed copies of the issuance of any stop order under the Securities Act with respect to the Registration Statement as reasonably requested (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as the institution of any proceedings therefor of which either Representative may reasonably request and will also deliver to the Representative a conformed copy of the Offerors shall have received notice. Each Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issuedUnderwriters.
(d) During The Offerors will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act, such period number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If at any time as when the Underwriters are Prospectus is required by law the 1933 Act to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered in connection with sales of the Preferred Securities, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company or the Trust shall be advised by the Representatives in writingit is necessary, shall occur which in the opinion of counsel for the Underwriters or counsel to the Company should be set forth in a and the Trust, to amend or supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when existing at the time it is to be delivered to a purchaser of purchaser, or if it shall be necessary at any such time to amend the Preferred Securities, the Company will Registration Statement or amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and file with the Commission subject to paragraph (b) above such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the statements therein, in the light of the circumstances when Registration Statement or the Prospectus is delivered to a purchaser, not misleading. Unless comply with such event relates solely requirements; and the Offerors will furnish to the activities Underwriters a reasonable number of the Underwriters (in which case the Underwriters shall assume the expense copies of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the The Offerors will furnish such proper information as may be lawfully requiredendeavor, and will otherwise cooperate in qualifying cooperation with the Underwriters, to qualify the Preferred Securities (and the Preferred Securities Guarantee) and the Subordinated Debentures for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that none of the Offerors shall not be required obligated to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomejurisdiction in which it is not so qualified.
(g) The Company will, except as herein provided, pay all fees, expenses Trust will make generally available to its security holders and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, Representative as soon as practicable but not limited to, (i) later than 90 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earnings statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities and 1933 Act Regulations) covering a twelve-month period beginning not later than the Debentures under first day of the blue sky laws of various jurisdictions, Trust's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivsaid Rule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each For a period of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days five years after the Closing Date Time, the Company will furnish to the Representative and, upon request, to each Underwriter, copies of all annual reports, quarterly reports and (ii) current reports filed with the date of the termination of the trading restrictions Commission on the Preferred SecuritiesForms 10-K, 10-Q and 8-K, or such other similar forms as determined may be designated by the Underwriters. The Representatives agree Commission, and such other documents, reports and information as shall be furnished by the Company to notify the Offerors of such termination if it occurs prior to the Closing Dateits stockholders or security holders generally.
(i) The Offerors will use their best efforts to cause effect the listing of the Preferred Securities to be duly authorized for listing (including the Preferred Securities Guarantee with respect thereto) on the NYSE, subject to notice of issuance, and to be registered under the Exchange ActNew York Stock Exchange; if the Preferred Securities are exchanged for Subordinated Debentures, the Company will use its best efforts to have effect the listing of the Subordinated Debentures listed on the exchange or other organization on which the Preferred Securities were then listed.
(j) During a period of 30 days from the date hereof, neither the Trust nor the Company will, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Subordinated Debentures or any debt securities substantially similar to the Subordinated Debentures or equity securities substantially similar to the Preferred Securities (except for the Subordinated Debentures and the Preferred Securities issued pursuant to have the Debentures registered under the Exchange Actthis Agreement).
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not During the period beginning on the Applicable Time and ending on the later than of the Closing DateDate or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer (except for delivery requirements imposed because such Underwriter or dealer is an affiliate of the Company or the Trust), including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), the Offerors will deliver to notify the Representatives a copy Representative promptly, and confirm the notice in writing, (i) of the effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment), (ii) of the filing of any supplement to the Disclosure Package, the Prospectus or any document filed pursuant to the Exchange Act which will be incorporated by reference in [the preliminary prospectus or] the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Disclosure Package or the Prospectus (other than with respect to a document filed with the Commission pursuant to the Exchange Act which will be incorporated by reference in the form that it became effective Registration Statement[, the preliminary prospectus] and the Prospectus), (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Disclosure Package or the Prospectus or for additional information relating thereto (other than such a conformed copy thereofrequest with respect to a document filed with the Commission pursuant to the Exchange Act which will be incorporated by reference in the Registration Statement[, certified by an officer the preliminary prospectus] and the Prospectus), and (v) of the Company issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Offerors will make every reasonable effort to be in such formprevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company Prior to the termination of the offering of the Capital Securities, the Offerors (1) will deliver give the Representative notice of their intention to file or prepare (i) any amendment to the Registration Statement (including any post-effective amendment) (other than with respect to a document filed with the Commission pursuant to the Exchange Act which will be incorporated by reference in the Registration Statement[, the preliminary prospectus] and Prospectus that is not filed to correct a misstatement, an omission or non-compliance that is the subject of a notice delivered to the Underwriters as many copies of pursuant to paragraph (e) below (a “Periodic Filing”)), or (ii) any amendment or supplement to the Disclosure Package or the Prospectus (and including any amendments revised prospectus which the Offerors propose for use by the Underwriters in connection with the offering of the Capital Securities which differs from the prospectus on file at the Commission at the time the Registration Statement became effective, whether or supplements theretonot such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations) (other than with respect to a Periodic Filing), will furnish the Representative with copies of any such amendment, supplement or other document within a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment, supplement or other document or use any such prospectus to which the Underwriters may or counsel for the Underwriters shall reasonably requestobject and (2) will furnish the Representative with copies of any document that will be incorporated by reference in [the preliminary prospectus] or the Prospectus whether pursuant to the Securities Act, the Exchange Act or otherwise. Subject to the foregoing, the Offerors will file [the preliminary prospectus and] the Prospectus pursuant to Rule 424(b) under the Securities Act within the time required by such rule.
(c) The Company Offerors will cause deliver to the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly Representative as many signed copies of the issuance of any stop order under the Securities Act with respect to the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) as the institution of any proceedings therefor of which either Representative may reasonably request and will also deliver to the Representative a conformed copy of the Offerors shall have received notice. Each Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issuedUnderwriters.
(d) During The Offerors will furnish to each Underwriter, from time to time during the period when the Prospectus is required to be delivered under the Securities Act, such period number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the Securities Act.
(e) If at any time as when the Underwriters are Prospectus is required by law the Securities Act to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered in connection with sales of the Capital Securities, if except with respect to any such delivery requirement imposed upon an affiliate of the Offerors in connection with any secondary market sales, any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Disclosure Package or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement Prospectus as then amended or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company supplemented will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading. Unless , or if it shall be necessary to amend or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of the Securities Act, the Offerors will, subject to paragraph (b) above, promptly prepare and file with the Commission such event relates solely amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance (including, if consented to by the Representative, by means of an Issuer Free Writing Prospectus), give immediate notice, and confirm in writing, to the activities Underwriters to cease the solicitation of offers to purchase the Capital Securities, and furnish to the Underwriters (in which case the Underwriters shall assume the expense a reasonable number of preparing any copies of such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(ef) The Offerors will endeavor, in cooperation with the Underwriters, to qualify the Capital Securities (and the Capital Securities Guarantee) and the Junior Subordinated Notes for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriters may designate; provided, however, that none of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) The Company will, on behalf of the Trust, will make generally available to its security holders and to the Trust's security holders, Underwriters as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earning earnings statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within Company and its subsidiaries, covering an applicable period beginning not later than the meaning first day of the Company’s fiscal quarter next following the “Effective Date” (as defined in Rule 158 158(c) under the Securities Act) of the Registration Statement, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet will satisfy the requirements of the last paragraph provisions of Section 11(a) of the Securities Act and Rule 158 Act.
(h) The Offerors will use reasonable efforts to effect the listing of the Capital Securities on the New York Stock Exchange; if the Capital Securities are exchanged for Junior Subordinated Notes, the Company will use its reasonable best efforts to effect the listing of the Junior Subordinated Notes on the exchange on which the Capital Securities were then listed.
(i) The Company, during the period when the Prospectus is required to be delivered under the Securities Act, will file promptly all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(fj) At any time within six months Until the business day following the Closing Date, neither the Company nor the Trust will, without the consent of the date hereofRepresentative, offer or sell, or announce the offering of, any additional securities covered by the Registration Statement or by any other registration statement filed under the Act; provided, however, the Company may, at any time, offer or sell or announce the offering of any securities (A) covered by a registration statement on Form S-8 or (B) covered by a registration statement on Form S-3 and (i) pursuant to which the Company issues securities under one of the Company’s medium-term note programs (including, without limitation, the Company’s Series __ Medium-Term Notes program and the Company’s InterNotes program) or (ii) pursuant to which the Company issues securities for its dividend reinvestment plan.
(k) The Offerors will furnish such proper information as may be lawfully requiredprepare a final term sheet containing only a description of the Capital Securities, in a form approved by the Representative and contained in Schedule D of this Agreement, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, file such term sheet pursuant to Rule 433(d) under the blue sky laws Securities Act as promptly as possible, but in any case not later than the time required by such rule (such term sheet, the “Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of such jurisdictions this Agreement.
(l) The Offerors represent that each has not made, and agree that, unless they obtain the prior written consent of the Representative, they will not make, any offer relating to the Capital Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Representatives may reasonably designate, Securities Act) required to be filed by an Offeror with the Commission or retained by an Offeror under Rule 433 of the Securities Act; provided that the Offerors prior written consent of the Representative shall not be required deemed to qualify have been given in respect of the Issuer Free Writing Prospectuses included in Schedule C hereto. Any such free writing prospectus consented to by the Representative is hereinafter referred to as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the “Permitted Free Writing Prospectus.” The Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, agree that (i) the preparation they have treated and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or towill treat, as the case may be, the National Association of Securities Dealerseach Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) they have complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Offerors consent to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Capital Securities or their offering, (ii) information that describes the final terms of the Capital Securities or their offering and that is included in the Final Term Sheet of the Offerors contemplated in paragraph (j) above or (iii) information permitted by Rule 134 of the Securities Act. If immediately prior to the third anniversary (the “Renewal Deadline”) of the initial effective date of the termination Registration Statement, any of the trading restrictions on the Preferred Securities, as determined Capital Securities remain unsold by the Underwriters. The Representatives agree to notify , the Offerors of such termination if it occurs Company and the Trust will prior to the Closing Date.
(i) The Offerors Renewal Deadline file, if they have not already done so and the Company is eligible to do so, a new automatic shelf registration statement relating to the Capital Securities, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company and the Trust will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Capital Securities, in a form satisfactory to the Representatives, and will use their best efforts to cause such registration statement to be declared effective within 60 days after the Preferred Renewal Deadline. The Company and the Trust will take all other action necessary or appropriate to permit the public offering and sale of the Capital Securities to be duly authorized for listing on continue as contemplated in the NYSEexpired registration statement relating to the Capital Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, subject as the case may be.
(m) If at any time when Capital Securities remain unsold by the Underwriters the Company or the Trust receives from the Commission a notice pursuant to notice of issuance, and Rule 401(g)(2) or the Company otherwise ceases to be registered under eligible to use the Exchange Act; if the Preferred Securities are exchanged for Debenturesautomatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Capital Securities, in a form satisfactory to the Representatives, (iii) use its best efforts to have cause such registration statement of post-effective amendment to be declared effective and (iv) promptly notify the Debentures listed on Representatives of such effectiveness. The Company and the exchange Trust will take all other action necessary or other organization on appropriate to permit the public offering and sale of the Capital Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Preferred Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
(n) The Company agrees to pay the required Commission filing fees relating to the Capital Securities were then listed, within the time required by Rule 456(b)(1) of the Securities Act without regard to the proviso therein and to have otherwise in accordance with Rules 456(b) and 457(r) of the Debentures registered Securities Act.
(o) The Offerors will apply the net proceeds from the sale of the Capital Securities sold by them in the manner described under the Exchange Actcaption “Use of Proceeds” in each of [the preliminary prospectus and] the Prospectus.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will timely file the Closing Date, Prospectus and any preliminary prospectus supplement used in connection with the Company will deliver to the Representatives a copy offering of the Registration Statement Securities with the Commission pursuant to Rule 424. The Offerors have complied and will comply with Rule 433 under the Securities Act in connection with the form that it became effective or a conformed copy thereof, certified by an officer offering and sale of the Company to be Preferred Trust Securities, including applicable provisions in such formrespect of timely filing with the Commission, legending and record-keeping.
(b) The Company Offerors will prepare a final term sheet, containing a description of the pricing terms of the Offered Securities, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433 under the Securities Act.
(c) FPL Group will deliver or cause to be delivered to the Representatives and to Counsel for the Underwriters one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of FPL Group to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Offered Securities, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date of this agreement, FPL Group will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters Representatives may reasonably request.
(c) The Company will cause request for the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under purposes contemplated by the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issuedAct.
(d) FPL Group [(1)Capital] has paid or cause to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Preferred Trust Securities as provided in Section [7] hereof and of the other Offered Securities as contemplated hereby, and (iii) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus, the Subordinated Indenture, the Trust Agreement and the Guarantee Agreement. FPL Group [(1)Capital] will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Offered Securities. The Offerors shall not, however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters, except that if this agreement shall be terminated in accordance with the provisions of Sections [9] or [10] hereof, FPL Group [(1)Capital] will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and FPL Group [(1)and/or FPL Group Capital] shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses, reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. None of the Offerors shall in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(e) During such a period of time as nine months after the Underwriters are required by law to deliver a prospectus after date of this Underwriting Agreement has become effectiveagreement, if any event relating to or affecting any of the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, Offerors shall occur which which, in the opinion of the Company FPL Group [(1)or FPL Group Capital], should be set forth in a supplement to or an amendment to of the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser purchaser, FPL Group [(1)or FPL Group Capital] will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Preferred Securities, the Company Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend or supplement the Prospectus so that, that as supplemented or amended, amended it will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless ; provided that should such event relates relate solely to the activities of any of the Underwriters (in which case Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until . In case any Underwriter is required to deliver a Prospectus after the expiration of nine months from after the time of effectiveness date of this Underwriting Agreementagreement, and such expenses shall be borne by FPL Group [(1)or FPL Group Capital] upon the Underwriters thereafter.
(e) The Company will, on behalf request of the Trust, make generally available Representatives will furnish to the Trust's security holdersRepresentatives, as soon as practicableat the expense of such Underwriter, an earning statement (which need not be audited) covering a period reasonable quantity of at least twelve months beginning after a supplemented or amended Prospectus or supplements or amendments to the "effective date Prospectus complying with Section 10 of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the The Offerors will furnish such proper information as may be lawfully required, required and will otherwise cooperate in qualifying the Preferred Securities Trust Securities, the Trust Guarantee, and to the Debentures extent required or advisable, the other Offered Securities, for offer and sale, sale under the blue sky laws of such United States jurisdictions as the Representatives may reasonably designatedesignate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that none of the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors any Offeror to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident FPL Group will timely file such reports pursuant to the performance Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of each Offeror's obligations under this Underwriting Agreement includingthe Securities Act) for the purposes of, but and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(h) Prior to the termination of the offering of the Preferred Trust Securities, the Offerors will not limited to, (i) the preparation and filing of file any amendment to the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement theretoto the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton & Xxxxxxxx LLP, except who are acting as otherwise provided counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in paragraph (d) of this Section 6writing, (v) or which shall be unsatisfactory to Counsel for the rating of Underwriters. The Offerors have not made any offer relating to the Preferred Trust Securities and that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Debentures Offerors with the Commission or retained by one or more nationally recognized statistical rating agenciesthe Offerors under Rule 433 under the Securities Act, (vi) filings or other notices (if any) with or to, than a pricing term sheet substantially in the form as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offeringset forth on Schedule I, and (vii) will not make any such offer without prior notice to the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") Representatives and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either offer to which the Trust Representatives shall reasonably object in writing, or the Company, except which shall be unsatisfactory to Counsel for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts advise the Representatives promptly of the filing of the Prospectus pursuant to cause Rule 424, of the filing of any material pursuant to Rule 433 and of any amendment or supplement to the Pricing Disclosure Package or the Registration Statement or, prior to the termination of the offering of the Preferred Trust Securities to be duly authorized for listing on the NYSEhereunder, subject to of official notice of issuancethe institution of proceedings for, and or the entry of, a stop order suspending the effectiveness of the Registration Statement, of receipt from the Commission of any notice of objection to be registered the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Exchange Securities Act; , and, if such a stop order should be entered, or notice of objection should be received, use every commercially reasonable effort to obtain the prompt removal thereof.
(j) If FPL Group [(1)Capital] Subordinated Debentures are distributed to holders of Preferred Trust Securities upon liquidation of the Trust, FPL Group [(1)Capital] will take such action as is required in order to comply with (or be exempt from) all applicable securities or blue sky laws of the various jurisdictions in the United States in connection with such distribution. The provisions of this Section [8](h) shall survive the delivery of the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActTrust Securities.
Appears in 1 contract
Covenants of the Offerors. Each In further consideration of the agreements ------------------------- of the Underwriters herein contained, the Offerors jointly and severally covenants and agrees covenant with the several Underwriters thateach Underwriter as follows:
(a) Not later than To furnish the Closing DateManager, without charge, two signed copies of the Company will deliver Registration Statement (including exhibits thereto) and for delivery to the Representatives each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and, during the period mentioned in the form that it became effective or a conformed copy thereofparagraph (c) below, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or supplements thereto) to the Registration Statement as the Underwriters Manager may reasonably request.
(cb) The Company will cause the Prospectus to be filed with, Before amending or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to supplementing the Registration Statement or the institution Prospectus with respect to the Capital Securities, to furnish to the Manager a copy of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts each such proposed amendment or supplement and not to prevent the issuance of file any such stop order and proposed amendment or supplement to secure which the prompt removal thereof if issuedManager reasonably objects.
(dc) During If, during such period after the first date of time the public offering of the Capital Securities as in the opinion of counsel for the Underwriters are the Prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered in connection with sales by an Underwriter or dealer, if any event relating to shall occur or affecting the Company or the Trust, or condition exist as a result of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered necessary to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the activities Underwriters and to the dealers (whose names and addresses the Manager will furnish to the Company) to which the Capital Securities may have been sold by the Manager on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
(in which case d) To endeavor to qualify the Underwriters Capital Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Manager shall assume reasonably request and to maintain such qualification for as long as the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) Manager shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterreasonably request.
(e) The Company will, on behalf of the Trust, To make generally available to the TrustCompany's security holders, holders and to the Manager as soon as practicable, practicable an earning statement (which need not be audited) covering a twelve-month period beginning on the first day of at least twelve months beginning the first full fiscal quarter after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Actthis Agreement, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Actrules and regulations of the Commission thereunder. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
(f) At any time within six months During the period beginning on the date of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement includingand continuing to and including the Closing Date, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Capital Securities, any other beneficial interests interest in the assets of the Trust, or any preferred securities or any other securities of the Trust or any other similar trust affiliated with the Company that Guarantor which are substantially similar to the Preferred Capital Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the GuaranteeCapital Securities, without the prior written consent of the Representatives until Manager.
(g) To use its reasonable efforts to permit the earlier Capital Securities and, if distributed to occur the holders of Capital Securities directly, the Junior Subordinated Debentures to be eligible for clearing through The Depository Trust Company.
(h) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) thirty (30) days after the Closing Date fees, disbursements and expenses of the Offerors' counsel and accountants, the Trustees and any counsel in connection with the preparation, registration issuance and delivery of the Capital Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified; (ii) the date preparation, issuance and delivery of the termination Capital Securities; (iii) the fees, disbursements and expenses of the trading restrictions on Offerors' counsel, the Preferred Trustees and any counsel in connection with the preparation of the Operative Documents and other documents related to the preparation, registration, issuance and delivery of the Capital Securities; (iv) the qualification of the Capital Securities under state securities or Blue Sky laws in accordance with the provisions of Section 6(d), as determined including filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Memoranda; (v) the printing and delivery to the Underwriters of copies of any Blue Sky Memoranda; (vi) any fees charged by rating agencies for the rating of the Capital Securities; (vii) all filing fees, reasonable fees and disbursements of counsel to the Underwriters incurred with respect to any filing with the National Association of Securities Dealers, Inc. made in connection with the Capital Securities; (viii) the costs and charges of any transfer agent, registrar or depositary; (ix) any expenses incurred by the Underwriters. The Representatives agree Offerors in connection with a "road show" presentation to notify potential investors; and (x) all other costs and expenses incident to the performance of the obligations of the Offerors hereunder for which provision is not otherwise made in this Section 5. It is understood, however, that except as provided in this Section 5, Section 6 entitled "Indemnity and Contribution," and the last paragraph of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for DebenturesSection 8 below, the Company Underwriters will use its best efforts to have pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Debentures listed on the exchange or other organization on which the Preferred Capital Securities were then listed, by them and to have the Debentures registered under the Exchange Actany advertising expenses connected with any offers they may make.
Appears in 1 contract
Samples: Underwriting Agreement (Provident Companies Inc /De/)
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Company and the Closing Date, Administrative Trustees on behalf of the Company Trust will deliver to prepare and timely file with the Representatives Commission under Rule 424(b) under the Act a copy Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company If the Offerors elect to rely on Rule 434 of the Act, the Offerors will deliver prepare a term sheet that complies with the requirements of Rule 434. If the Offerors elect not to rely on Rule 434, the Offerors will provide the Underwriters as many with copies of the Prospectus (and any amendments or supplements thereto) form of prospectus, in such numbers as the Underwriters may reasonably request, and file with the Commission such prospectus in accordance with Rule 424(b) of the Act by the close of business in New York City on the second business day immediately succeeding the date of pricing of the offering of the Preferred Securities (the "Pricing Date"). If the Offerors elect to rely on Rule 434, the Offerors will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such numbers as the Underwriters may reasonably request, by the close of business in New York on the business day immediately succeeding the Pricing Date.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(d) During The Offerors will cooperate with you and your counsel in order to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are required may reasonably have designated and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws). The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by law to deliver the Underwriters for that purpose.
(e) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus after this Underwriting Agreement has become effectiveis required under the Act, if the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date or the Option Closing Date, as the case may be, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, together with the Incorporated Documents, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, together with the Incorporated Documents, as the Underwriters may reasonably request.
(f) If at any time when a prospectus relating to the Preferred Securities is required to be delivered under the Act any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company Prospectus, including any amendments or the Trust shall be advised by the Representatives in writingsupplements, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact fact, or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading. Unless such event relates solely , or if it is necessary at any time to amend the activities Prospectus, including any amendments or supplements thereto and including any revised prospectus which the Offerors propose for use by the Underwriters in connection with the offering of the Underwriters (in Preferred Securities which case differs from the Underwriters shall assume prospectus on file with the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from Commission at the time of effectiveness of this Underwriting Agreementthe Registration Statement, and whether or not such expenses shall revised prospectus is required to be borne by filed pursuant to Rule 424(b) to comply with the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors promptly will furnish such proper information as may be lawfully required, advise you thereof and will otherwise cooperate promptly prepare and file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance; and, in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be case any Underwriter is required to qualify as deliver a foreign corporation prospectus nine months or dealer in securities, to file any consents to service of process under more after the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies date of the Registration Statement, the preliminary (Offerors upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or any supplemental) blue sky survey, any Preliminary Prospectus and prospectuses as may be necessary to permit compliance with the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (drequirements of Section 10(a)(3) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Samples: Underwriting Agreement (First Busey Capital Trust I)
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities 1933 Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act.
(db) During The Offerors will furnish the Underwrixxxx xxth copies of each amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of the Preferred Securities in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Preferred Securities by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriters, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as the case may be, in order to make the Preliminary Supplemented Prospectus or Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Preliminary Supplemented Prospectus or Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Preferred Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preliminary Supplemented Prospectus or Final Supplemented Prospectus which will supplement or amend the Preliminary Supplemented Prospectus or Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Preferred Securities after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the expenses of complying Company will continue to prepare and file with this Section 6(d) shall be borne by the Commission on a timely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company until shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the expiration of nine months from the time of effectiveness of this Underwriting Agreement, Representative and such expenses shall be borne by the Underwriters thereafterDewey Ballantine LLP.
(ec) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully requiredendexxxx, and will otherwise cooperate in qualifying xx xxxxxxxxxxx xxxx the Underwriters, to qualify the Preferred Securities and, to the extent required or advisable, the Guarantee and the Debentures Junior Subordinated Notes, for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earning statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws 1933 Act) covering a twelve-month period beginning not later xxan the first day of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, .
(e) As soon as practicable after the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) date of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offeringAgreement, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable within the time prescribed by Rule 424 under the 1933 Act, to file the Underwriters for damages on account of loss of anticipated profits.
(h) Each of Final Supplemented Prospectus with the Offerors will not offer, sell, contract Commission and to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in advise the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee Representative of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, filing and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Actconfirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the Securities Act or the Exchange Act.
(db) During The Offerors will furnish the Underwriters with copies of each amendment and supplement to the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus relating to the offering of the Notes in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Notes by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingRepresentative, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus in order to make the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus or to file under the Exchange Act any document incorporated by reference in the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus in order to comply with the Securities Act or the Exchange Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus which will supplement or amend the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Notes after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the expenses of Final Supplemented Prospectus, complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a10(a) of the Securities Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a timely basis all documents or amendments required under the Exchange Act and Rule 158 under the Securities Actrules and regulations thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the Representative and Dewey Ballantine LLP.
(fc) At any time within six months of The Offerors wilx xxxxxxxx, xx cooperation with the date hereofUnderwriters, to qualify the Notes and, to the extent required or advisable, the Offerors will furnish such proper information as may be lawfully requiredNotes Guarantee, for offering and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earnings statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws Securities Act) covering a twelve-month period beginning not later than the first day of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement, neither SoCo Capital nor the preliminary (Company will, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Notes, any security convertible into or exchangeable into or exercisable for the Notes or any supplemental) blue sky survey, any Preliminary Prospectus debt securities substantially similar to the Notes (except for the Notes issued pursuant to this Agreement and the Prospectus and any amendment or supplement theretoSeries B Floating Rate Senior Notes due February 1, except 2004).
(f) As soon as otherwise provided in paragraph (d) practicable after the date of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offeringAgreement, and (vii) in any event within the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof time prescribed by Rule 424 under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereofSecurities Act, the Company will reimburse file the Underwriters for (A) Final Supplemented Prospectus with the reasonable fees Commission and expenses of Counsel for will advise the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee Representative of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any filing and will confirm such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Dateadvice in writing.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Samples: Underwriting Agreement (Southern Co)
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly orally of the issuance of any stop order under the Securities 1933 Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act.
(db) During The Offerors will furnish the Underwriters with copiex xx xxxh amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of the Preferred Securities in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Preferred Securities by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriters, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as the case may be, in order to make the Preliminary Supplemented Prospectus or Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Preliminary Supplemented Prospectus or Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Preferred Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preliminary Supplemented Prospectus or Final Supplemented Prospectus which will supplement or amend the Preliminary Supplemented Prospectus or Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Preferred Securities after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the expenses of complying Company will continue to prepare and file with this Section 6(d) shall be borne by the Commission on a timely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company until shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the expiration of nine months from the time of effectiveness of this Underwriting Agreement, Representatives and such expenses shall be borne by the Underwriters thereafterDewey Ballantine LLP.
(ec) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully requiredendeavor, and will otherwise cooperate in qualifying cxxxxxxxxxx xxxx xxx Xxxxxwriters, to qualify the Preferred Securities and, to the extent required or advisable, the Guarantee and the Debentures Junior Subordinated Notes, for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earning statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws 1933 Act) covering a twelve-month period beginning not later thax xxx xxrst day of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary .
(or any supplementale) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) The Offerors will use best efforts to effect the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange ActExchange; if the Preferred Securities are exchanged for DebenturesJunior Subordinated Notes, the Company will use its best efforts to have effect the Debentures listed listing of the Junior Subordinated Notes on the any exchange or other organization on which the Preferred Securities were are then listed.
(f) During a period of 15 days from the date of this Agreement, neither the Trust nor the Company will, without the Representatives' prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Junior Subordinated Notes or any debt securities substantially similar to the Junior Subordinated Notes or equity securities substantially similar to the Preferred Securities (except for the Junior Subordinated Notes and the Preferred Securities issued pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and to have in any event within the Debentures registered time prescribed by Rule 424 under the Exchange 1933 Act, to file the Final Supplemented Prospectus with the Commission and to advise the Representatives of such filing and to confirm such advice in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Savannah Electric & Power Co)
Covenants of the Offerors. Each of the (a) The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(ai) Not later than the Closing Date, the Company The Offerors will deliver use its best efforts to the Representatives a copy of cause the Registration Statement to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to the Prospectus (including a Prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the form that it became effective Act or a conformed copy thereof, certified by an officer of the Company to be in such formRules.
(bii) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives promptly of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(diii) During The Offerors will cooperate with the Representatives in endeavoring to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions (including foreign jurisdictions) as the Underwriters Representatives reasonably may have designated in writing, and will make such applications, file such documents and furnish such information as may be reasonably required for that purpose; provided however, the Offerors shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Preferred Securities.
(iv) The Offerors will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any preliminary prospectus as the Representatives may reasonably request. The Offerors will deliver to, or upon the order of, the Representatives on the Effective Date and thereafter from time to time during the period when delivery of a Prospectus is required under the Act as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Offerors will deliver to the Representatives at or before the Closing Date, one signed copy of the Registration Statement and all amendments. thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement, and of all amendments thereto, as the Representatives may reasonably request.
(v) If during the period in which a Prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effective, if be delivered by an Underwriter or dealer any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which as a result of which, in the judgment of the Offerors or in the opinion of counsel for the Company should be set forth in a supplement or amendment to Underwriters, with the Prospectus in order to make the Prospectus not misleading in the light concurrence of the circumstances when Offerors and its counsel, it is delivered becomes necessary to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will notify the Representatives and, subject to the activities Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in light of the Underwriters (in which case circumstances when it is so delivered, be misleading, or so that the Underwriters shall assume Prospectus will comply with the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(evi) The Company will, on behalf of the Trust, Offerors will make generally available to their security holders in the Trust's security holdersmanner contemplated by Rule 158(b) under the Act, as soon as practicableit is practicable to do so, an earning but in any event not later than the forty-fifth day after the fiscal quarter first occurring one year after the Effective Date, a consolidated earnings statement of the Offerors (which need not be audited) in reasonable detail covering a period of at least twelve consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.Effective
Appears in 1 contract
Samples: Underwriting Agreement (TBC Capital Statutory Trust)
Covenants of the Offerors. Each of the (a) The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(ai) Not later than the Closing Date, the Company The Offerors will deliver use their best efforts to the Representatives a copy of cause the Registration Statement to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to the Prospectus (including a Prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the form that it became effective Act or a conformed copy thereof, certified by an officer of the Company to be in such formRules.
(bii) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives promptly of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(diii) During The Offerors will cooperate with the Representatives in endeavoring to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions (including foreign jurisdictions) as the Underwriters Representatives reasonably may have designated in writing, and will make such applications, file such documents and furnish such information as may be reasonably required for that purpose; provided, however, the Offerors shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Preferred Securities.
(iv) The Offerors will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any preliminary prospectus as the Representatives may reasonably request. The Offerors will deliver to, or upon the order of, the Representatives on the Effective Date and thereafter from time to time during the period when delivery of a Prospectus is required under the Act as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Offerors will deliver to the Representatives, at or before the Closing Date, one signed copy of the Registration Statement and all amendments thereto, including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement, and of all amendments thereto, as the Representatives may reasonably request.
(v) If during the period in which a Prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effective, if be delivered by an Underwriter or dealer any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which as a result of which, in the judgment of the Offerors or in the opinion of counsel for the Company should be set forth in a supplement or amendment to Underwriters, with the Prospectus in order to make the Prospectus not misleading in the light concurrence of the circumstances when Offerors and its counsel, it is delivered becomes necessary to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will notify the Representatives and, subject to the activities Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in light of the Underwriters (in which case circumstances when it is so delivered, be misleading, or so that the Underwriters shall assume Prospectus will comply with the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(evi) The Company will, on behalf of the Trust, Offerors will make generally available to their security holders in the Trust's security holdersmanner contemplated by Rule 158(b) under the Act, as soon as practicableit is practicable to do so, an earning but in any event not later than the forty-fifth (45th) day after the fiscal quarter first occurring one year after the Effective Date, a consolidated earnings statement of the Offerors (which need not be audited) in reasonable detail covering a period of at least twelve (12) consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActEffective Date, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Actwill advise you in writing when such Statement has been so made available.
(fvii) At any time within six months The Offerors will, for a period of three (3) years from the date hereofClosing Date, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as deliver to the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service copies of process under the laws of any jurisdiction, or to meet any other requirements deemed annual reports and information furnished by the Offerors to be unduly burdensometheir stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act, as amended. The Offerors will deliver to the Representatives similar reports with respect to any significant subsidiaries, as that term is defined in the Rules, which are not consolidated in the Offerors' financial statements.
(gviii) The Company willAs soon as the Offerors are advised thereof, except as herein providedthey will advise the Representatives, pay all feesand confirm the advice in writing, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of that the Registration Statement and any post-effective amendment thereto, amendments shall have become effective.
(iiix) The Offerors will use the printing, issuance and delivery of net proceeds from the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification sale of the Preferred Securities and the Debentures in the manner forth in the Prospectus under the blue sky laws caption "Use of various jurisdictionsProceeds."
(x) Other than as permitted by the Act and the Rules, the Offerors will not distribute any prospectus or offering materials in an amount not to exceed $6,000, (iv) connection with the printing offering and delivery to the Underwriters of reasonable quantities of copies sale of the Registration StatementPreferred Securities.
(xi) The Offerors will maintain a transfer agent and, if necessary under the preliminary (or any supplemental) blue sky surveyjurisdiction of incorporation of the Offerors, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of a registrar for the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, will use their best efforts to establish and (vii) maintain the listing of the Preferred Securities (and, if applicablesubject to distribution thereof, the Debentures Debentures) on the New York American Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profitsExchange.
(hxii) Each of Except as contemplated hereby or by the Prospectus, the Offerors will not offernot, for a period of 180 days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets shares of the Trust, Preferred Securities or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent shares of the Representatives until Preferred Securities without your prior written consent. Furthermore, the earlier to occur of (i) thirty (30) days after the Closing Date Offerors will cause each executive officer and (ii) the date director of the termination of Offerors (as set forth in the trading restrictions Prospectus) to furnish to you, on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs or prior to the Closing execution of this Underwriting Agreement, a letter or letters, in form and substance satisfactory to counsel for Underwriters, pursuant to which each such person shall agree not to offer for sale, sell, distribute or otherwise dispose of any shares of Preferred Securities of the Offerors during the 180 days following the Effective Date.
(i) The Offerors will use , except with your written consent; provided, however, that nothing herein shall prevent such persons from transferring or assigning their best efforts to cause shares of the Preferred Securities pursuant to be duly authorized for listing on a bona fide gift or pledge transaction. The foregoing covenants and agreements shall apply to any successor of the NYSEOfferors, subject to notice of issuanceincluding, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentureswithout limitation, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on any entity into which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActOfferors might convert or merge.
Appears in 1 contract
Samples: Underwriting Agreement (Abc Bancorp Capital Trust I)
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities 1933 Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act.
(db) During The Offerors will furnish the Underwriters with copies xx xxxx amendment and supplement to the Final Supplemented Prospectus relating to the offering of the Preferred Securities in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Preferred Securities by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriters, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Prospectus Final Supplemented Prospectus, as the case may be, in order to make the Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Preferred Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Preferred Securities after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the expenses of complying Company will continue to prepare and file with this Section 6(d) shall be borne by the Commission on a timely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company until shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the expiration of nine months from the time of effectiveness of this Underwriting Agreement, Representative and such expenses shall be borne by the Underwriters thereafterDewey Ballantine LLP.
(ec) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully requiredendeavor, and will otherwise cooperate in qualifying cooperation xxxx xxx Xxxxxxxiters, to qualify the Preferred Securities and, to the extent required or advisable, the Guarantee and the Debentures Junior Subordinated Notes, for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earnings statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws 1933 Act) covering a twelve-month period beginning not later than the xxxxx xxy of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary .
(or any supplementale) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) The Offerors will use best efforts to effect the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange ActExchange; if the Preferred Securities are exchanged for DebenturesJunior Subordinated Notes, the Company will use its best efforts to have effect the Debentures listed listing of the Junior Subordinated Notes on the any exchange or other organization on which the Preferred Securities were are then listed.
(f) During a period of 15 days from the date of this Agreement, neither the Trust nor the Company will, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Junior Subordinated Notes or any debt securities substantially similar to the Junior Subordinated Notes or equity securities substantially similar to the Preferred Securities (except for the Junior Subordinated Notes and the Preferred Securities issued pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and to have in any event within the Debentures registered time prescribed by Rule 424 under the Exchange 1933 Act, to file the Final Supplemented Prospectus with the Commission and to advise the Representative of such filing and to confirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees agree with the several ------------------------- Underwriters that:
(a) Not later than The Offerors will promptly file the Closing Date, Prospectus with the Company Commission pursuant to Rule 424 under the Securities Act.
(b) FPL Group will deliver to the Representatives a and to Counsel for the Underwriters one signed copy of the Registration Statement in the form that it became effective or or, if a signed copy is not available, one conformed copy thereof, of the Registration Statement certified by an officer of the Company FPL Group to be in such form.
(b) The Company the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Offered Securities, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date of this agreement, FPL Group will deliver to the Underwriters through the Representatives as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters Representatives may reasonably requestrequest for the purposes contemplated by the Securities Act.
(c) The Company FPL Group will pay or cause the Prospectus to be filed withpaid all expenses in connection with the (i) preparation and filing of the Registration Statement and Prospectus, or transmitted (ii) issuance and delivery of the Trust Preferred Securities as provided in Section 7 hereof and of the other Offered Securities as contemplated hereby, and (iii) printing and delivery to the Representatives for filing tothe account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, the Commission pursuant Prospectus, the Subordinated Indenture, the Trust Agreement and the Guarantee Agreement. FPL Group will pay or cause to and in compliance with Rule 424(b) and will advise the Representatives promptly of be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Offered Securities. The Offerors shall not, however, be required to pay any stop order under amount for any expenses of the Securities Act Representatives or any of the Underwriters, except that if this agreement shall be terminated in accordance with respect the provisions of Sections 9 or 10 hereof, FPL Group will pay or cause to be paid the Registration Statement or fees and disbursements of Counsel for the institution Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event and FPL Group and/or FPL Group Capital shall reimburse the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of any proceedings therefor an aggregate of which either $5,000. None of the Offerors shall have received notice. Each in any event be liable to any of the Offerors will use its best efforts to prevent the issuance several Underwriters for damages on account of any such stop order and to secure the prompt removal thereof if issuedloss of anticipated profits.
(d) During such a period of time as nine months after the Underwriters are required by law to deliver a prospectus after date of this Underwriting Agreement has become effectiveagreement, if any event relating to or affecting any of the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, Offerors shall occur which which, in the opinion of the Company FPL Group or FPL Group Capital, should be set forth in a supplement to or an amendment to of the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser purchaser, FPL Group will forthwith at its expense prepare and furnish to the Representatives a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preferred Securities, the Company Prospectus which will supplement or amend or supplement the Prospectus so that, that as supplemented or amended, amended it will not contain include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless ; provided that should such event relates relate solely to the activities of any of the Underwriters (in which case Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until . In case any Underwriter is required to deliver a Prospectus after the expiration of nine months from after the time of effectiveness date of this Underwriting Agreementagreement, and FPL Group upon the request of the Representatives will furnish to the Representatives, at the expense of such expenses shall be borne by Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Underwriters thereafterProspectus complying with Section 10 of the Securities Act.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, required and will otherwise cooperate in qualifying the Trust Preferred Securities Securities, the Trust Guarantee, and to the Debentures extent required or advisable, the other Offered Securities, for offer and sale, sale under the blue sky laws of such jurisdictions as the Representatives may reasonably designatedesignate and will pay or cause to be paid filing fees and expenses (including fees and expenses of counsel) in the aggregate not exceeding $5,000, provided that none of the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors any Offeror to be unduly burdensome.
(f) FPL Group will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of the Securities Act) for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(g) The Company will, except as herein provided, pay all fees, expenses Offerors will advise the Representatives promptly of the filing of the Prospectus pursuant to Rule 424 and taxes incident of any amendment or supplement to the performance Prospectus or Registration Statement or, prior to the termination of each Offeror's obligations under this Underwriting Agreement includingthe offering of the Offered Securities hereunder, but not limited toof official notice of the institution of proceedings for, (i) or the preparation and filing entry of, a stop order suspending the effectiveness of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicablesuch a stop order should be entered, use every commercially reasonable effort to obtain the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profitsprompt removal thereof.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants ------------------------- covenant and agrees agree with the several Underwriters that:
(a) Not later than the Closing Date, the Company The Offerors will deliver not file any amendment to the Representatives a copy of the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a copy and as to which the Underwriters shall have reasonably objected in writing promptly after reasonable notice thereof or which is not in compliance with the form that it became effective Act or a conformed copy thereof, certified by an officer of the Company to be in such formrules and regulations thereunder.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(dc) During The Offerors will cooperate with the Underwriters and the Underwriter's counsel in order to qualify the Capital Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Capital Securities (or obtain exemptions from the application of such laws), provided that neither Offeror shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two conformed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if for any other reason it shall be necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will prepare and file with the Commission an appropriate amendment to the activities Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not 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 Underwriters (in which case circumstances when it is so delivered, not misleading, or so that the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(ef) The Company will, on behalf of the Trust, Offerors will make generally available to the Trust's their security holders, as soon as practicableit is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, thereunder and will otherwise cooperate advise the Underwriters in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of writing when such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomestatement has been so made available.
(g) The Company will, except for five years from the Closing Date, deliver to each Underwriter, as herein providedsoon as they are available, pay copies of its annual report and copies of all feesother documents, expenses reports and taxes incident information furnished by the Company to its security holders or filed with any securities exchange pursuant to the performance requirements of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) such exchange or with the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities Commission pursuant to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (Act or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting AgreementAct. The Company shall will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in any event be liable to the Underwriters for damages on account of loss of anticipated profitsCompany's financial statements.
(h) Each The Offerors will apply the net proceeds from the sale of the Offerors will not offer, sell, contract to sell or otherwise dispose Junior Subordinated Debentures and the Capital Securities substantially in accordance with the purposes set forth under "Use of any Preferred Securities, any other beneficial interests Proceeds" in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
(i) The Offerors will use their best efforts to cause maintain the Preferred designation of the Capital Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActNasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will prepare and timely file with the Closing Date, Commission under Rule 424(b) under the Company will deliver to Act a Prospectus containing information previously omitted at the Representatives a copy time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(dc) During The Offerors will cooperate with you and your counsel in order to qualify the Capital Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Capital Securities (or obtain exemptions from the application of such laws), provided that the neither Offeror shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to time, prepare
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if for any other reason it shall be necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will prepare and file with the Commission an appropriate amendment to the activities Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not 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 Underwriters (in which case circumstances when it is so delivered, not misleading, or so that the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(ef) The Company will, on behalf of the Trust, Offerors will make generally available to the Trust's their security holders, as soon as practicableit is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, thereunder and will otherwise cooperate advise you in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of writing when such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomestatement has been so made available.
(g) The Company will, except for five years from the Closing Date, deliver to each Underwriter, as herein providedsoon as they are available, pay copies of its annual report and copies of all feesother documents, expenses reports and taxes incident information furnished by the Company to its security holders or filed with any securities exchange pursuant to the performance requirements of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) such exchange or with the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities Commission pursuant to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (Act or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting AgreementAct. The Company shall will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in any event be liable to the Underwriters for damages on account of loss of anticipated profitsCompany's financial statements.
(h) Each The Offerors will apply the net proceeds from the sale of the Offerors will not offer, sell, contract to sell or otherwise dispose Junior Subordinated Debentures and the Capital Securities substantially in accordance with the purposes set forth under "Use of any Preferred Securities, any other beneficial interests Proceeds" in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have maintain the Debentures listed designation of the Capital Securities on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActNasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities 1933 Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Preliminary Prospectus and Prospectus and of all amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Preliminary Prospectus and Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 0000 Xxx.
(db) During The Offerors will furnish the Underwriters with copies of each amendment and supplement to the Preliminary Prospectus and Prospectus relating to the offering of the Preferred Securities in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Preferred Securities by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriters, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Preliminary Prospectus or Prospectus, as the case may be, in order to make the Preliminary Prospectus or Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Preliminary Prospectus or Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Preferred Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preliminary Prospectus or Prospectus which will supplement or amend the Preliminary Prospectus or Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Preliminary Prospectus or Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Preferred Securities after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the Preliminary Prospectus or Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the expenses of complying Company will continue to prepare and file with this Section 6(d) shall be borne by the Commission on a timely basis all documents or amendments required under the 1934 Act and the 1934 Act Regulations; provided, that the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and shall not file such expenses shall be borne by documents or amendments without also furnishing copies thereof prior to such filing to the Underwriters thereafterand Xxxxx Xxxxxxxxxx.
(ec) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully requiredendeavor, and will otherwise cooperate in qualifying cooperation with the Underwriters, to qualify the Preferred Securities and, to the extent required or advisable, the Guarantee and the Debentures Junior Subordinated Notes, for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earnings statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities and 1933 Act Regulations) covering a twelve-month period beginning not later than the Debentures under first day of the blue sky laws of various jurisdictions, Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary .
(or any supplementale) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) The Offerors will use best efforts to effect the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange ActExchange; if the Preferred Securities are exchanged for DebenturesJunior Subordinated Notes, the Company will use its best efforts to have effect the Debentures listed listing of the Junior Subordinated Notes on the exchange or other organization on which the Preferred Securities were then listed.
(f) During a period of 30 days from the date of this Agreement, neither the Trust nor the Company will, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Junior Subordinated Notes or any debt securities substantially similar to the Junior Subordinated Notes or equity securities substantially similar to the Preferred Securities (except for the Junior Subordinated Notes and the Preferred Securities issued pursuant to have the Debentures registered under the Exchange Actthis Agreement).
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with each of the several Underwriters that:
(a) Not later than a. The Offerors shall comply with the Closing Date, the Company will deliver to the Representatives a copy provisions of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, make all requisite filings with the Commission pursuant to Rules 424(b), 430A and in compliance with Rule 424(b462(b) of the Rules and Regulations and will notify the Underwriters promptly in writing of all such filings. The Offerors shall notify the Underwriters promptly of any request by the Commission for any amendment of or supplement to the Registration Statement, the Effective Prospectus or the Final Prospectus or for additional information; the Offerors shall prepare and file with the Commission, promptly upon the request of the Underwriters, any amendments of or supplements to the Registration Statement, the Effective Prospectus or the Final Prospectus which, in the Underwriters' reasonable opinion, may be necessary or advisable in connection with the distribution of the Designated Capital Securities; and the Offerors shall not file any amendment of or supplement to the Registration Statement, the Effective Prospectus or the Final Prospectus which is not approved by the Underwriters after reasonable notice thereof. The Offerors shall advise the Representatives Underwriters promptly of the issuance by the Commission or any jurisdiction or other regulatory body of any stop order under or other order suspending the Securities Act with respect to effectiveness of the Registration Statement Statement, suspending or preventing the use of any Preliminary Prospectus, the Effective Prospectus or the Final Prospectus or suspending the qualification of the Designated Capital Securities for offering or sale in any jurisdiction, or of the institution of any proceedings therefor of which either of for any such purpose; and the Offerors shall have received notice. Each of the Offerors will use its their best efforts to prevent the issuance of any such stop order and or other such order and, should a stop order or other such order be issued, to secure obtain as soon as possible the prompt removal thereof if issuedlifting thereof.
(d) During b. The Offerors will take or cause to be taken all necessary action and furnish to whomever the Underwriters direct, such period information as may be reasonably required in qualifying the Designated Capital Securities for offer and sale under the securities or Blue Sky laws of time such jurisdictions as the Underwriters are may designate and will continue such qualifications in effect for as long as may be reasonably necessary to complete the distribution. The Offerors shall not be required to qualify as a foreign corporation or (except for the sole purpose of complying with Blue Sky filing requirements) or to file a general consent to service of process in any jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation.
c. Within the time during which a Final Prospectus relating to the Designated Capital Securities is required to be delivered under the Securities Act, the Offerors shall comply with all requirements imposed upon it by law the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to deliver a prospectus after this Underwriting Agreement has become effectivetime in force, if so far as is necessary to permit the continuance of sales of or dealings in the Designated Capital Securities as contemplated by the provisions hereof and the Final Prospectus. If during such period any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company Final Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserthen existing, not misleading. Unless , or if during such event relates solely period it is necessary to amend the activities of Registration Statement or supplement the Final Prospectus to comply with the Securities Act, the Offerors shall promptly notify the Underwriters and shall amend the Registration Statement or supplement the Final Prospectus (in which case the Underwriters shall assume at the expense of preparing the Offerors) so as to correct such statement or omission or effect such compliance.
d. The Offerors will furnish without charge to the Underwriters and make available to the Underwriters copies of the Registration Statement (four of which shall be signed and shall be accompanied by all exhibits, including any such amendment or supplementwhich are incorporated by reference, which have not previously been furnished), each Preliminary Prospectus, the expenses Effective Prospectus and the Final Prospectus, and all amendments and supplements thereto, including any prospectus or supplement prepared after the effective date of complying with this Section 6(dthe Registration Statement, in each case as soon as such document becomes available and in such quantities as the Underwriters may reasonably request.
e. The Offerors will (i) shall be borne by deliver to the Company until Underwriters at such office or offices as the expiration Underwriters may designate as many copies of the Preliminary Prospectus and Final Prospectus as the Underwriters may reasonably request, and (ii) for a period of not more than nine months from after the time of effectiveness of this Underwriting AgreementRegistration Statement becomes effective, and such expenses shall be borne by send to the Underwriters thereafteras many additional copies of the Final Prospectus and any supplement thereto as the Underwriters may reasonably request.
(e) f. The Company will, on behalf of the Trust, Offerors shall make generally available to the Trust's its security holders, in the manner contemplated by Rule 158(b) under the Securities Act as soon promptly as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning practicable and in any event no later than 90 days after the "end of its fiscal quarter in which the first anniversary of the effective date of the registration statement" within Registration Statement occurs, an earnings statement satisfying the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph provisions of Section 11(a) of the Securities Act and Rule 158 under covering a period of at least 12 consecutive months beginning after the Securities Act.
(f) At any time within six months of the effective date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) Statement.
g. The Offerors will apply the printing, issuance and delivery net proceeds from the sale of the certificates for the Preferred Designated Capital Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures as set forth under the blue sky laws caption "Use of various jurisdictions, Proceeds" in an amount not to exceed $6,000, (iv) the printing and delivery to Final Prospectus.
h. During a period of five years from the Underwriters of reasonable quantities of copies effective date of the Registration Statement, the preliminary Offerors will furnish to the Underwriters copies of all reports and other communications (financial or any supplementalother) blue sky survey, any Preliminary Prospectus furnished by the Company to its stockholders and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) Trust to the holders of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Capital Securities and, if applicableas soon as available, copies of any reports or financial statements furnished or filed by the Debentures Offerors to or with the Commission or any national securities exchange on which any class of securities of the New York Stock Exchange (Offerors may be listed.
i. The Offerors will, from time to time, after the "NYSE") and effective date of the registration thereof under Registration Statement, file with the Commission such reports as are required by the Securities Act, the Exchange Act and the Rules and Regulations, and shall also file with state securities commissions in accordance states where the Designated Capital Securities have been sold by the Underwriters (as the Underwriters shall have advised the Offerors in writing) such reports as are required to be filed by the securities acts and the regulations of those states.
j. Except pursuant to this Agreement or with Section 6(i) hereof. Except the Underwriters' written consent, for a period of 180 days from the effective date of the Registration Statement, the Offerors will not, and the Company has provided agreements executed by each of its executive officers and directors, providing that for a period of 180 days from the First Closing Date, such person or entity will not offer for sale, sell or grant any options (other than pursuant to existing employee benefit plans and agreements, other existing compensation agreements and, existing stock options), rights or warrants with respect to any Designated Capital Securities.
k. If at any time during the 25 day period after the Registration Statement is declared effective, any rumor, publication or event relating to or affecting the Offerors shall occur as provided a result of which, in the Underwriters' opinion, the market price for the Designated Capital Securities has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Final Prospectus), the Offerors will, after written notice from the Underwriters advising them as to the effect set forth above, prepare, consult with the Company shall not be required Underwriters concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to pay any expenses of the Underwriters, except thatresponding to or commenting on such rumor, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 publication or 12 hereof, the event.
l. The Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwritersnot take, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell directly or otherwise dispose of any Preferred Securitiesindirectly, any other beneficial interests action which would cause or result in the assets delisting of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust 's Capital Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred SecuritiesAmerican Stock Exchange, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the First Closing Date or, if the Underwriters exercise the option granted by the Offerors to cover overallotments, prior to the Option Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Company and the Closing Date, Administrative Trustees on behalf of the Company Trust will deliver to prepare and timely file with the Representatives Commission under Rule 424(b) under the Act a copy Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective or a conformed copy thereofAct, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of not file any stop order under the Securities Act with respect amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a copy and as to which the Underwriters shall have reasonably objected in writing promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
b) The Offerors will advise the Underwriters promptly and, if requested by the Underwriters, will confirm such advice in writing (i) when any post- effective amendment to the Registration Statement is filed or becomes effective, and of the filing of any final prospectus or supplement or amendment to the Prospectus, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or Prospectus or any Preliminary Prospectus or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Trust Preferred Securities or the Debentures for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes, and (iv) of the happening of any event which makes any statement made in the Registration Statement or Prospectus (as then amended or supplemented) untrue in any material respect or which requires the making of any additions to or changes in the Registration Statement or Prospectus (as then amended or supplemented) in order to make the statements therein not misleading or to amend or supplement the Prospectus to comply with the Act or any other law. The Company will provide the Underwriter with copies of the form of Prospectus in such numbers as the Underwriter may reasonably request and file or transmit for filing with the Commission such Prospectus in accordance with Rule 424(b) of the Act by the close of business in San Francisco, California on the business day immediately succeeding the date hereof.
c) The Offerors will advise the Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Trust Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof if issuedwithdrawal thereof.
(d) During The Offerors will prepare and file with the Commission, promptly upon the Underwriters' reasonable request, any amendment to the Registration Statement or supplement to the Prospectus that may be necessary or advisable in connection with the distribution of the Trust Preferred Securities by the Underwriter in the Underwriters' or its counsel's opinion, and the Company will use its best efforts to cause the same to become effective as promptly as possible.
e) The Offerors will cooperate with the Underwriters and their counsel in order to qualify the Trust Preferred Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are may reasonably have designated and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Trust Preferred Securities (or obtain exemptions from the application of such laws), provided that neither Offeror shall be required to qualify as a foreign corporation in any jurisdiction where it is not now so qualified. The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.
f) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, such number of signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
g) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if for any other reason it shall be necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will prepare and file with the Commission an appropriate amendment to the activities Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not 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 Underwriters (in which case circumstances when it is so delivered, not misleading, or so that the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreementlaw, and such expenses shall deliver, without charge, to the dealers (whose names and addresses will be borne furnished by the Underwriters thereafterto the Company) to whom Trust Preferred Securities have been sold by the Underwriters or to other dealers, any amendments or supplements to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will comply with the standards set forth in this sentence.
(eh) The Company will, on behalf of the Trust, make generally available consents to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws use of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws Prospectus (and of any jurisdiction, amendments or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(gsupplements thereto) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 the Act and with the securities or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation Blue Sky laws of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests jurisdictions described in the assets of the Trust, or any preferred securities or any other securities of preliminary Blue Sky memorandum in which the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, lawfully offered by the Company will use its best efforts Underwriter and by all dealers to have whom the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.Trust
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will timely file the Closing Date, Prospectus with the Company Commission pursuant to Rule 424 under the Securities Act. The Offerors have complied and will deliver to comply with Rule 433 under the Representatives a copy Securities Act in connection with the offering and sale of the Registration Statement Preferred Trust Securities, including applicable provisions in respect of timely filing with the form that it became effective or a conformed copy thereofCommission, certified by an officer of the Company to be in such formlegending and record-keeping.
(b) The Company Offerors will prepare a final term sheet, containing a description of the pricing terms of the Offered Securities, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433 under the Securities Act.
(c) FPL will deliver or cause to be delivered to the Representatives and to Counsel for the Underwriters one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of FPL to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Offered Securities, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date of this agreement, FPL will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters Representatives may reasonably request.
(c) The Company will cause request for the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under purposes contemplated by the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issuedAct.
(d) FPL has paid or cause to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Preferred Trust Securities as provided in Section 6 hereof and of the other Offered Securities as contemplated hereby, and (iii) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus, the Subordinated Indenture, the Trust Agreement and the Guarantee Agreement. FPL will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Offered Securities. The Offerors shall not, however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters, except that if this agreement shall be terminated in accordance with the provisions of Sections 8 or 9 hereof, FPL will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event and FPL shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. Neither of the Offerors shall in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(e) During such a period of time as nine months after the Underwriters are required by law to deliver a prospectus after date of this Underwriting Agreement has become effectiveagreement, if any event relating to or affecting either of the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, Offerors shall occur which which, in the opinion of the Company FPL, should be set forth in a supplement to or an amendment to of the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser purchaser, FPL will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Preferred Securities, the Company Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend or supplement the Prospectus so that, that as supplemented or amended, amended it will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless ; provided that should such event relates relate solely to the activities of any of the Underwriters (in which case Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until . In case any Underwriter is required to deliver a Prospectus after the expiration of nine months from after the time of effectiveness date of this Underwriting Agreementagreement, and such expenses shall be borne by FPL upon the Underwriters thereafter.
(e) The Company will, on behalf request of the Trust, make generally available Representatives will furnish to the Trust's security holdersRepresentatives, as soon as practicableat the expense of such Underwriter, an earning statement (which need not be audited) covering a period reasonable quantity of at least twelve months beginning after a supplemented or amended Prospectus or supplements or amendments to the "effective date Prospectus complying with Section 10 of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the The Offerors will furnish such proper information as may be lawfully required, required and will otherwise cooperate in qualifying the Preferred Securities Trust Securities, the Trust Guarantee, and to the Debentures extent required or advisable, the other Offered Securities, for offer and sale, sale under the blue sky laws of such United States jurisdictions as the Representatives may reasonably designatedesignate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that neither of the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors either Offeror to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident FPL will timely file such reports pursuant to the performance Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of each Offeror's obligations under this Underwriting Agreement includingthe Securities Act) for the purposes of, but and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(h) Prior to the termination of the offering of the Preferred Trust Securities, the Offerors will not limited to, (i) the preparation and filing of file any amendment to the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement theretoto the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton & Wxxxxxxx LLP, except who are acting as otherwise provided counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in paragraph (d) of this Section 6writing, (v) or which shall be unsatisfactory to Counsel for the rating of Underwriters. The Offerors have not made any offer relating to the Preferred Trust Securities and that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Debentures Offerors with the Commission or retained by one or more nationally recognized statistical rating agenciesthe Offerors under Rule 433 under the Securities Act, (vi) filings or other notices (if any) with or to, than a pricing term sheet substantially in the form as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offeringset forth on Schedule I, and (vii) will not make any such offer without prior notice to the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") Representatives and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either offer to which the Trust Representatives shall reasonably object in writing, or the Company, except which shall be unsatisfactory to Counsel for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts advise the Representatives promptly of the filing of the Prospectus pursuant to cause Rule 424, of the filing of any material pursuant to Rule 433 and of any amendment or supplement to the Pricing Disclosure Package or the Registration Statement or, prior to the termination of the offering of the Preferred Trust Securities to be duly authorized for listing on the NYSEhereunder, subject to of official notice of issuancethe institution of proceedings for, and or the entry of, a stop order suspending the effectiveness of the Registration Statement, of receipt from the Commission of any notice of objection to be registered the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Exchange Act; Securities Act has been received by FPL, and, if such a stop order should be entered, or notice of objection should be received, use every commercially reasonable effort to obtain the prompt removal thereof.
(j) If Subordinated Debentures are distributed to holders of Preferred Trust Securities upon liquidation of the Trust, FPL will take such action as is required in order to comply with (or be exempt from) all applicable securities or blue sky laws of the various jurisdictions in the United States in connection with such distribution. The provisions of this Section 7(h) shall survive the delivery of the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActTrust Securities.
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors jointly ------------------------- and severally covenants and agrees with the several Underwriters that:
(a) Not later than the Closing Date, the Company XXXX will deliver to the Representatives a copy of the Registration Statement in the form that it became effective under the Securities Act or a conformed copy thereof, certified by an officer of the Company HECO to be in such form.
(b) The Company Offerors will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company Offerors will cause the Prospectus to be filed with, or transmitted for filing to, to the Commission pursuant to and in compliance with Rule 424(b) under the Securities Act and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best reasonable efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effectiverelating to any of the Securities, if any event relating to or affecting the Company or the TrustOfferors, or of which the Company or the Trust Offerors shall be advised by the Representatives in writing, shall occur which that in the opinion of the Company Representatives and HECO should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of any of the Preferred Securities, or if it shall be necessary in the Company opinion of the Representatives and HECO at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act, the Exchange Act or the Trust Indenture Act or, in each case, the rules and regulations of the Commission thereunder, the Offerors will amend or supplement the Prospectus so that, as supplemented amended or amendedsupplemented, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to misleading or amend the activities of Registration Statement or amend or supplement the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment Prospectus so that, as amended or supplement)supplemented, the expenses of complying Registration Statement or the Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterrequirements.
(e) The Company HECO will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the The Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying with the Underwriters, to qualify the Trust Preferred Securities and and, if applicable, the Distributable HECO Debentures for offer and sale, sale under the state securities or blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, securities or to file any general consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company HECO will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement Agreement, including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Trust Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Trust Preferred Securities and and, if applicable, the Distributable HECO Debentures under the state securities or blue sky laws of various jurisdictionsjurisdictions in accordance with the provisions of Section 6(f) hereof, including the reasonable fees and disbursements of Counsel for the Underwriters in an amount not connection therewith and with the preparation of any Blue Sky Survey (and any supplement thereto) relating to exceed any of the Securities up to a maximum of $6,00015,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, any Blue Sky Survey (and any supplement thereto) relating to any of the preliminary (or any supplemental) blue sky surveySecurities, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating ratings of the Trust Preferred Securities and and, if applicable, the Distributable HECO Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Trust Preferred Securities on the NYSE and, if applicable, the Distributable HECO Debentures on the New York Stock Exchange (the "NYSE") , or such other exchange or other organization, and the registration thereof under the Exchange Act in accordance with Section 6(i) hereofhereof and (vii) all other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically provided for in this Section 6(g). Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if If this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 7 (other than paragraph (l) thereof) or 8 or 12 hereof, the Company Obligors will reimburse the Underwriters for (A) the reasonable all out-of-pocket expenses, including fees and expenses disbursements of Counsel for the Underwriters, whose fees and expenses reasonably incurred by the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company Obligors shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not not, and HECO will cause each of HELCO and MECO to not, offer, sell, contract to sell or otherwise dispose of any Trust Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company Obligors that are substantially similar to the Trust Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the CompanyObligors, except for the Trust Securities and the GuaranteeSecurities, without the consent of the Representatives until the earlier to occur of (i) thirty (30) 30 days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Trust Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Trust Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if and, upon any distribution of the Distributable HECO Debentures to holders of the Trust Preferred Securities are exchanged for DebenturesSecurities, the Company HECO will use its best efforts to have the Distributable HECO Debentures listed on the NYSE, or such other exchange or other organization on which the Trust Preferred Securities were are then listed, and to have the Distributable HECO Debentures registered under the Exchange Act.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees covenant with the several Underwriters thateach Underwriter as follows:
(a) Not The Company will use its best efforts to cause the Registration Statement and any post-effective amendments to the Registration Statement to be declared effective by the Commission (as and when specified in the reasonable request of the Representative) and will prepare the Prospectus in a form reasonably approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the 1933 Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the 1933 Act. The Company will make no further amendment or any supplement to the Registration Statement or the Prospectus prior to any First Closing DateDate which shall be reasonably disapproved by the Representative after reasonable notice thereof. The Company will notify the Representative immediately and confirm the notice in writing (i) when the Registration Statement or any post-effective amendment thereto (and any other amendment thereto) has been declared effective by the Commission, (ii) of the transmittal to the Commission for filing of any amendment or supplement to the Prospectus, (iii) of the receipt by the Company will deliver of any comments from the Commission or any state securities commission with respect to the Representatives a copy transactions contemplated by this Agreement, (iv) of any request by the Commission or any state securities commission for any amendment or supplement to the Registration Statement or the Prospectus, or for additional information, (v) of the issuance by the Commissioner or any state securities commission or court of competent jurisdiction of any order suspending either the Offering or the use of either the Preliminary Prospectus or the Prospectus or of the threat of any such action by any such entity, (vi) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer any amendment thereto or of the receipt by the Company of any notification with respect to be the suspension of the registration, qualification or exemption of the Capital Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceeding for such formpurpose. In the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such registration, qualification or exemption, the Company promptly will use its best efforts to obtain its withdrawal.
(b) The Company will deliver give the Representative notice of its intention to file or prepare any amendment or supplement to the Underwriters as many copies of Registration Statement or any amendment or supplement to the Prospectus (whether, in the case of the Registration Statement and any amendments the Prospectus, by the filing of documents pursuant to the 1934 Act, the 1933 Act or supplements thereto) as otherwise and, in the Underwriters may reasonably requestcase of the Prospectus, by amending or supplementing the Prospectus then being used by the Underwriters).
(c) The Company has furnished or will cause deliver to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representative a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, from time to time during the period when the Prospectus is required to be filed withdelivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or transmitted supplemented) as such Underwriter may reasonably request for filing to, the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission pursuant thereunder.
(e) If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to amend the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make that the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain include any untrue statement statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing counsel, at any such amendment time to amend the Registration Statement or supplement), the expenses of complying Prospectus in order to comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of Section 11(a) copies of such amendment or supplement as the Securities Act and Rule 158 under the Securities ActUnderwriters may reasonably request.
(f) At If, at the time that the Registration Statement or a post-effective amendment thereto becomes effective, any time within six months information shall have been omitted therefrom in reliance upon Rule 430A of the date hereof1933 Act Regulations, then immediately following effectiveness, the Offerors Company will furnish such proper information as may be lawfully requiredprepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted and will otherwise cooperate use its best efforts to cause any such post-effective amendment to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in qualifying cooperation with the Preferred Underwriters, to qualify the Capital Securities for offering and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and other jurisdictions of the United States as the Representatives Representative may reasonably designatedesignate and to maintain such qualification in effect for a period of not less than one year from the effective date of the Registration Statement; provided, provided however, that the Offerors Company shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities, securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Capital Securities have been so qualified the Company will file any consents to service of process under such statements and reports as may be required by the laws of any jurisdiction, or such jurisdiction to meet any other requirements deemed by continue such qualification in effect for a period of not less than one year from the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies date of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors The Company will make generally available to its security holders as soon as practicable, but not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) later than 90 days after the Closing Date and (ii) the date close of the termination period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the trading restrictions on 1933 Act Regulations) covering a 12-month period beginning not later than the Preferred Securities, first day of the Company's fiscal quarter next following the "effective date" (as determined by defined in said Rule 158) of the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateRegistration Statement.
(i) The Offerors will cooperate with the Underwriters and use their best efforts to cause permit the Preferred Capital Securities to be duly authorized eligible for listing on clearance and settlement through the NYSE, subject to notice facilities of issuanceDTC.
(j) The Trust will use the net proceeds received by it from the sale of the Capital Securities, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts the proceeds received by it from the sale of the Subordinated Debentures, in the manners specified in the Prospectus under "Use of Proceeds."
(k) Prior to have December 6, 1998, neither the Debentures listed on Trust nor the exchange Company will, without the prior written consent of Wheat First, directly or other organization on which indirectly, issue, sell, offer or agree to sell, grant any option for the Preferred sale of, or otherwise dispose of, any securities that are substantially similar to the Capital Securities, any security convertible into exchangeable or exercisable for Capital Securities were then listed, and or any equity security substantially similar to have the Debentures registered under Capital Securities (except for the Exchange ActSecurities issued pursuant to this Agreement or with the prior written consent of Wheat First).
Appears in 1 contract
Samples: Underwriting Agreement (Southern Bancshares Nc Inc)
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the Securities Act or the Exchange Act.
(db) During The Offerors will furnish the Underwriters with copies of each amendment and supplement to the Prospectus and the Final Supplemented Prospectus relating to the offering of the Notes in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Notes by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingRepresentative, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Final Supplemented Prospectus or to file under the Exchange Act any document incorporated by reference in the Final Supplemented Prospectus in order to comply with the Securities Act or the Exchange Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleading. Unless such event relates solely to the activities of the Underwriters (in misleading or which case the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet effect any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.necessary
Appears in 1 contract
Samples: Underwriting Agreement (Southern Co)
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities 1933 Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act.
(db) During The Offerors will furnish the Unxxxxxxxxrs with copies of each amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of the Preferred Securities in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Preferred Securities by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriters, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as the case may be, in order to make the Preliminary Supplemented Prospectus or Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Preliminary Supplemented Prospectus or Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Preferred Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preliminary Supplemented Prospectus or Final Supplemented Prospectus which will supplement or amend the Preliminary Supplemented Prospectus or Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Preferred Securities after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the expenses of complying Company will continue to prepare and file with this Section 6(d) shall be borne by the Commission on a timely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company until shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the expiration of nine months from the time of effectiveness of this Underwriting Agreement, Representative and such expenses shall be borne by the Underwriters thereafterDewey Ballantine.
(ec) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully requiredendeavxx, and will otherwise cooperate in qualifying xx xxxxxxxxxon with the Underwriters, to qualify the Preferred Securities and, to the extent required or advisable, the Guarantee and the Debentures Junior Subordinated Notes, for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earnings statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws 1933 Act) covering a twelve-month period beginning not lxxxx xxxn the first day of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary .
(or any supplementale) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) The Offerors will use best efforts to effect the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange ActExchange; if the Preferred Securities are exchanged for DebenturesJunior Subordinated Notes, the Company will use its best efforts to have effect the Debentures listed listing of the Junior Subordinated Notes on the any exchange or other organization on which the Preferred Securities were are then listed.
(f) During a period of 15 days from the date of this Agreement, and neither the Trust nor the Company will, without the Representative's prior written consent, directly or indirectly, sell, offer to have sell, grant any option for the Debentures registered under sale of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Exchange Act.Junior Subordinated Notes or any debt securities substantially similar to the Junior
Appears in 1 contract
Covenants of the Offerors. Each of the (a) The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(ai) Not later than The Offerors will use their best efforts to cause the Closing DateRegistration Statement to become effective and will not, the Company will deliver either before or after effectiveness, file any amendment thereto or supplement to the Representatives Prospectus (including a Prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected in writing or which is not in compliance with the Act or Rules.
(ii) The Offerors will advise the Underwriters promptly of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement in or for supplement to the form Prospectus or for any additional information, or of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings for that it became effective purpose, or a conformed copy comparable action taken or initiated by any Other Securities Regulator, and the Offerors will use their best efforts to prevent the issuance of any stop order preventing or suspending the use of the Prospectus and to obtain as soon as possible the lifting thereof, certified by an officer of the Company to be in such formif issued.
(biii) The Company Offerors will cooperate with the Underwriters in endeavoring to qualify the Preferred Securities for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Underwriters reasonably may have designated in writing, and will make such applications, file such documents and furnish such information as may be reasonably required for that purpose; provided, however, the Offerors shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for distribution of the Preferred Securities.
(iv) The Offerors will deliver to, or upon the order of, the Underwriters, from time to time, as many copies of any preliminary prospectus as the Underwriters may reasonably request. The Offerors will deliver to, or upon the order of, the Underwriters on the Effective Date and thereafter from time to time during the period when delivery of a Prospectus is required under the Act as many copies of the Prospectus (in final form, or as thereafter amended or supplemented, as the Underwriters may reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, one signed copy of the Registration Statement and any all amendments or supplements thereto) , including all exhibits filed therewith, and will deliver to the Underwriters such number of copies of the Registration Statement, and of all amendments thereto, as the Underwriters may reasonably request.
(cv) The Company will cause If during the period in which a Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are is required by law to deliver a prospectus after this Underwriting Agreement has become effective, if be delivered by an Underwriter or dealer any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which as a result of which, in the judgment of the Offerors or in the opinion of counsel for the Company should be set forth in a supplement or amendment to Underwriters, with the Prospectus in order to make the Prospectus not misleading in the light concurrence of the circumstances when Offerors and its counsel, it is delivered becomes necessary to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will notify the Underwriters and, subject to the activities Underwriters' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in light of the Underwriters (in which case circumstances when it is so delivered, be misleading, or so that the Underwriters shall assume Prospectus will comply with the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(evi) The Company will, on behalf of the Trust, Offerors will make generally available to their security holders in the Trust's security holdersmanner contemplated by Rule 158(b) under the Act, as soon as practicableit is practicable to do so, an earning but in any event not later than the forty-fifth (45th) day after the fiscal quarter first occurring one year after the Effective Date, a consolidated earnings statement of the Offerors (which need not be audited) in reasonable detail covering a period of at least twelve (12) consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActEffective Date, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Actwill advise you in writing when such Statement has been so made available.
(fvii) At any time within six months The Offerors will, for a period of three (3) years from the date hereofClosing Date, deliver to the Offerors will furnish such proper Underwriters copies of annual reports and information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed furnished by the Offerors to be unduly burdensometheir stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act, as amended. The Offerors will deliver to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the Rules, which are not consolidated in the Offerors' financial statements.
(gviii) The Company willAs soon as the Offerors are advised thereof, except as herein providedthey will advise the Underwriters, pay all feesand confirm the advice in writing, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of that the Registration Statement and any post-effective amendment thereto, amendments shall have become effective.
(iiix) The Offerors will use the printing, issuance and delivery of net proceeds from the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification sale of the Preferred Securities and the Debentures in the manner forth in the Prospectus under the blue sky laws caption "Use of various jurisdictionsProceeds."
(x) Other than as permitted by the Act and the Rules, the Offerors will not distribute any prospectus or offering materials in an amount not to exceed $6,000, (iv) connection with the printing offering and delivery to the Underwriters of reasonable quantities of copies sale of the Registration StatementPreferred Securities.
(xi) The Offerors will maintain a transfer agent and, if necessary under the preliminary (or any supplemental) blue sky surveyjurisdiction of incorporation of the Offerors, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of a registrar for the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, will use their best efforts to establish and (vii) maintain the listing of the Preferred Securities (and, if applicablesubject to distribution thereof, the Debentures Debentures) on the New York American Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profitsExchange.
(hxii) Each of Except as contemplated hereby or by the Prospectus, the Offerors will not offernot, for a period of 180 days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets shares of the Trust, Preferred Securities or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent shares of the Representatives until Preferred Securities without your prior written consent. Furthermore, the earlier to occur of (i) thirty (30) days after the Closing Date Offerors will cause each executive officer and (ii) the date director of the termination of Offerors (as set forth in the trading restrictions Prospectus) to furnish to you, on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs or prior to the Closing execution of this Underwriting Agreement, a letter or letters, in form and substance satisfactory to counsel for Underwriters, pursuant to which each such person shall agree not to offer for sale, sell, distribute or otherwise dispose of any shares of Preferred Securities of the Offerors during the 180 days following the Effective Date.
(i) The Offerors will use , except with your written consent; provided, however, that nothing herein shall prevent such persons from transferring or assigning their best efforts to cause shares of the Preferred Securities pursuant to be duly authorized for listing on a bona fide gift or pledge transaction. The foregoing covenants and agreements shall apply to any successor of the NYSEOfferors, subject to notice of issuanceincluding, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentureswithout limitation, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on any entity into which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActOfferors might convert or merge.
Appears in 1 contract
Samples: Underwriting Agreement (Abc Bancorp)
Covenants of the Offerors. Each of the Offerors The Offerors, jointly and severally covenants severally, covenant and agrees agree with the several Underwriters that:
(a) Not later than If the Closing Date, the Company will deliver to the Representatives a copy effective time of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver is not prior to the Underwriters as many copies execution and delivery of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withthis Agreement, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent cause the Registration Statement to become effective at the earliest possible time and, upon notification from the Commission that the Registration Statement has become effective, will so advise the Underwriter's and counsel to the Underwriters promptly. If the effective time of the Registration Statement is prior to the execution and delivery of this Agreement and any information shall have been omitted therefrom in reliance upon Rule 430A, the Offerors, at the earliest possible time, will furnish the Underwriters with a copy of the Prospectus to be filed by the Offerors with the Commission to comply with Rule 424(b) and Rule 430A under the Act and, if the Underwriters do not object to the contents thereof, will comply with such Rules. Upon compliance with such Rules, the Offerors will so advise the Underwriters promptly. The Offerors will advise the Underwriters and counsel to the Underwriters promptly of the issuance by the Commission or any state securities commission of any such stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Designated Preferred Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for that purpose, and will also advise the Underwriters and counsel to secure the prompt removal thereof Underwriters promptly of any request of the Commission for 16 amendment or supplement of the Registration Statement, of any Preliminary Prospectus or of the Prospectus, or for additional information, and the Offerors will not file any amendment or supplement to the Registration Statement (either before or after it becomes effective), to any Preliminary Prospectus or to the Prospectus (including a prospectus filed pursuant to Rule 424(b)), or file any document under the Exchange Act before the termination of the public offering of the Designated Preferred Securities by the Underwriters if issuedsuch document would be deemed to be incorporated by reference in the Registration Statement, if the Underwriters have not been furnished with a copy prior to such filing (with a reasonable opportunity to review such amendment or supplement) or if the Underwriters object to such filing.
(db) During such period of If, at any time as when a prospectus relating to the Underwriters are Designated Preferred Securities is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered in connection with sales by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact fact, or would omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading. Unless such event relates solely , or if it is necessary at any time to supplement the activities of Prospectus to comply with the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment Act or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 file under the Securities Exchange Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the Act or the Exchange Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors promptly will furnish such proper information as may be lawfully required, advise the Underwriters and counsel to the Underwriters and will otherwise cooperate in qualifying promptly prepare and file with the Preferred Securities and the Debentures for offer and saleCommission, under the blue sky laws of such jurisdictions as the Representatives may reasonably designateat its expense, provided that the Offerors shall not be required an amendment to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and or file such document which will correct such statement or omission or an amendment which will effect such compliance; and, if any post-Underwriter is required to deliver a prospectus after the effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies date of the Registration Statement, the preliminary (or any supplemental) blue sky surveyOfferors, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses upon request of the Underwriters, except that, if this Underwriting Agreement shall will prepare promptly such prospectus or prospectuses as may be terminated in accordance necessary to permit compliance with the provisions requirements of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.10(a)(3)
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Company and the Closing Date, Administrative Trustees on behalf of the Company Trust will deliver to prepare and timely file with the Representatives Commission under Rule 424(b) under the Act a copy Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company If the Offerors elect to rely on Rule 434 of the Act, the Offerors will deliver prepare a term sheet that complies with the requirements of Rule 434. If the Offerors elect not to rely on Rule 434, the Offerors will provide the Underwriters as many with copies of the Prospectus (and any amendments or supplements thereto) form of prospectus, in such numbers as the Underwriters may reasonably request, and file with the Commission such prospectus in accordance with Rule 424(b) of the Act by the close of business in New York City on the second business day immediately succeeding the date of pricing of the offering of the Preferred Securities (the "Pricing Date"). If the Offerors elect to rely on Rule 434, the Offerors will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such numbers as the Underwriters may reasonably request, by the close of business in New York on the business day immediately succeeding the Pricing Date.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(d) During The Offerors will cooperate with you and your counsel in order to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are required may reasonably have designated and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws). The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by law to deliver the Underwriters for that purpose.
(e) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus after this Underwriting Agreement has become effectiveis required under the Act, if the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, together with the Incorporated Documents, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, together with the Incorporated Documents, as the Underwriters may reasonably request.
(f) If at any time when a prospectus relating to the Preferred Securities is required to be delivered under the Act any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company Prospectus, including any amendments or the Trust shall be advised by the Representatives in writingsupplements, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact fact, or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading. Unless such event relates solely , or if it is necessary at any time to amend the activities Prospectus, including any amendments or supplements thereto and including any revised prospectus which the Offerors propose for use by the Underwriters in connection with the offering of the Underwriters (in Preferred Securities which case differs from the Underwriters shall assume prospectus on file with the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from Commission at the time of effectiveness of this Underwriting Agreementthe Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Act, the Offerors promptly will advise you thereof and will promptly prepare and file with the Commission an amendment or supplement which will correct such expenses shall statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Offerors upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be borne by necessary to permit compliance with the Underwriters thereafterrequirements of Section 10(a)(3) of the Act.
(eg) The Not later than September 1, 2001 the Company will, on behalf of the Trust, will make generally available to the Trust's its security holders, as soon as practicable, holders an earning earnings statement (which need not be audited) covering a period of at least twelve 12 months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each During the period of the Offerors will not offerfive years hereafter, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of will furnish you with a copy (i) thirty (30) days as soon as practicable after the Closing Date and filing thereof, of each report filed by the Company with the Commission, any securities exchange or the NASD; (ii) as soon as practicable after the date release thereof, of each material press release in respect of the termination Company; and (iii) as soon as available, of each report of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree Company mailed to notify the Offerors of such termination if it occurs prior to the Closing Datestockholders.
(i) The Offerors will use their best efforts to cause the net proceeds received by it from the sale of the Preferred Securities to be duly authorized for listing in the manner specified in the Prospectus.
(j) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A and/or Rule 434, then on the NYSEPricing Date, subject to notice of issuancethe Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, Rule 424(b) and/or Rule 434, copies of an amended Prospectus, or, if required by such Rule 430A and/or Rule 434, a post-effective amendment to be registered under the Registration Statement (including an amended Prospectus), containing all information so omitted. If required, the Offerors will prepare and file, or transmit for filing, a Rule 462(b) Registration Statement not later than the date of the execution of the Pricing Agreement. If a Rule 462(b) Registration Statement is filed, the Offerors shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111.
(k) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act; if Act and the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActAmerican Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees covenant with the several Underwriters that------------------------- each Underwriter as follows:
(a) Not later than The Offerors, subject to Section 3(b) hereof, will comply with the Closing Daterequirements of Rule 434, as applicable, and will notify the Company will deliver Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Representatives a copy Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Offerors will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as they deem necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the form event that it became effective or a conformed copy thereofwas not, certified by an officer they will promptly file such prospectus. The Offerors will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Company to be in such formlifting thereof at the earliest possible moment.
(b) The Company Offerors will deliver give the Representatives notice of its intention to file or prepare any amendment to the Underwriters as many Registration Statement (including any filing under Rule 462(b)), any Term Sheet or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with copies of the Prospectus (and any amendments such documents a reasonable amount of time prior to such proposed filing or supplements thereto) use, as the Underwriters case may reasonably requestbe, and will not file or use any such document without the consent of the Representatives, which consent shall not be unreasonably withheld.
(c) The Company Offerors have furnished or will cause deliver to the Prospectus Representatives and counsel for the Underwriters, without charge, photocopies of the signed Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and photocopies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed with, or and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted for filing to, copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulatixx X-T.
(d) The Offerors will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulatxxx X-T.
(e) The Offerors will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Capital Securities as contemplated in this Agreement and in compliance the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with Rule 424(b) and will advise the Representatives promptly sales of the issuance Capital Securities, any event shall occur or condition shall exist as a result of any stop order under which it is necessary, in the Securities Act with respect reasonable opinion of counsel for the Underwriters or for the Offerors, to amend the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it in order that the Prospectus will not contain include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing counsel, at any such amendment time to amend the Registration Statement or supplement), amend or supplement the expenses of complying Prospectus in order to comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Offerors will furnish to the Underwriters such number of Section 11(a) copies of such amendment or supplement as the Securities Act and Rule 158 under the Securities ActUnderwriters may reasonably request.
(f) At any time within six months of the date hereof, the The Offerors will furnish such proper information as may be lawfully requireduse their best efforts, in cooperation with the Underwriters, to qualify the Capital Securities for offering and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and other jurisdictions as the Representatives may reasonably designatedesignate and to maintain such qualifications in effect for a period of not less than one year from the later of the effective date of the Registration Statement and any Rule 462(b) Registration Statement; provided, provided however, that the Offerors shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securitiessecurities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Capital Securities have been so qualified, to the Offerors will file any consents to service of process under such statements and reports as may be required by the laws of any jurisdiction, or such jurisdiction to meet any other requirements deemed by continue such qualification in effect for a period of not less than one year from the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing effective date of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.Rule 462(b)
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with each of the several Underwriters that:
(a) Not later than the Closing Date, the Company will deliver The Offerors shall use their best efforts to the Representatives a copy of cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as practicable. If required, the Offerors will file the Prospectus and any amendment or supplement thereto with the Commission in the form that manner and within the time period required by Rule 424(b) under the Act. During any time when a prospectus relating to the Trust Preferred Securities is required to be delivered under the Act, the Offerors (i) will comply with all requirements imposed upon it became effective by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or a conformed copy thereof, certified by an officer dealings in the Trust Preferred Securities in accordance with the provisions hereof and of the Company Prospectus, as then amended or supplemented, and (ii) will not file with the Commission the Prospectus or the amendment referred to be in Section 2(a) hereof, any amendment or supplement to such formProspectus or any amendment to the Registration Statement of which the Representatives shall not previously have been advised and furnished with a copy a reasonable period of time prior to the proposed filing and as to which filing the Representatives shall not have given their consent.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withOfferors are advised or obtain knowledge thereof, or transmitted for filing tothe, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives promptly or their counsel (i) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Registration Statement becomes effective; or (ii) of any request made by the Commission for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information, or (iii) of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any amendment or supplement thereto or the institution or threat of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Offerors will (i) use their best efforts to arrange for the qualification of the Trust Preferred Securities, the Debentures and the Guarantee for offer and sale under the state securities or blue sky laws of such jurisdictions as the Representatives may designate, (ii) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Trust Preferred Securities, and (iii) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (i) and (ii); provided, however, -------- ------- that the Offerors shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction.
(d) During The Offerors consent to the use of the Prospectus (and any amendment or supplement thereto) by the Underwriters and all dealers to whom the Trust Preferred Securities may be sold, if any such Prospectus is used, in connection with the offering or sale of the Trust Preferred Securities and for such period of time thereafter as the Underwriters are Prospectus is required by law to deliver be delivered in connection therewith. If, at any time when a prospectus after this Underwriting Agreement has become effectiveProspectus relating to the Trust Preferred Securities is required to be delivered under the Act, if any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so thatProspectus, as supplemented then amended or amendedsupplemented, it will not contain would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereintherein not misleading, in the light of the circumstances when or if it becomes necessary at any time to amend or supplement the Prospectus is delivered to a purchasercomply with the Act or the Rules and Regulations, not misleading. Unless such event relates solely the Offerors promptly will so notify the Representatives and, subject to Section 5(a) hereof and at the Offerors, expense, will prepare and file with the Commission an amendment to the activities of Registration Statement or an amendment or supplement to the Underwriters (in Prospectus which case the Underwriters shall assume the expense of preparing any will correct such statement or omission or affect such compliance, each such amendment or supplement), supplement to be reasonably satisfactory to counsel to the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterUnderwriters.
(e) The Company willAs soon as practicable, on behalf but in any event not later than 45 days after the end of the Trust12-month period beginning on the day after the end of the fiscal quarter of the Offerors during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Offerors' fiscal year), the Offerors will make generally available to the Trust's its security holders, as soon as practicablein the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an earning earnings statement (which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited) audited unless required by the Act or the Rules and Regulations, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities ActRegistration Statement.
(f) At any time within six months The Offerors will maintain a Transfer Agent and, if necessary under the jurisdiction of incorporation of the date hereofOfferors, the Offerors will furnish such proper information as a Registrar (which may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions same entity as the Representatives may reasonably designate, provided that Transfer Agent) for the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomeTrust Preferred Securities.
(g) The Company willOfferors will furnish, except as herein providedwithout charge, pay all fees, expenses and taxes incident to the performance Representatives or on the Representatives' order, at such place as the Representatives may designate, copies of each Offeror's obligations under this Underwriting Agreement includingthe Preliminary Prospectus, but not limited to, (i) the preparation and filing of the Registration Statement and any pre-effective or post-effective amendment thereto, amendments thereto (ii) the printing, issuance two of which copies will be signed and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities will include all financial statements and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE"exhibits) and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other eventProspectus, and (B) reasonable out-of-pocket expenses incurred all amendments and supplements thereto, in contemplation of each case as soon as available and in such quantities as the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profitsRepresentatives may reasonably request.
(h) Each of the The Offerors will not not, directly or indirectly, without the prior written consent of Sutro & Co. Incorporated, issue, offer, sell, contract grant any option to sell purchase or otherwise dispose (or announce any issuance, offer, sale, grant of any Preferred Securities, option to purchase or other disposition) of any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities shares of the Trust Preferred Securities or the Company that are any securities convertible into, or exchangeable or exercisable for, shares of Trust Preferred Securities or Debentures or any debt securities substantially similar to the Preferred Securities, including any guarantee of such securities, Debentures or any equity securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either to the Trust or the Company, except Preferred Securities for the Trust Securities and the Guarantee, without the consent a period of the Representatives until the earlier to occur of (i) thirty (30) 180 days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securitieshereof, except pursuant to this Agreement, or as determined contemplated by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
(i) The Offerors will use their best efforts to cause the Trust Preferred Securities to be duly authorized included for listing on the NYSEAMEX prior to the Closing Time.
(j) Neither the Offerors nor any of their officers or directors, subject 5% or more stockholders nor affiliates of any of them (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to notice stabilize or manipulate the price of issuanceany security of the Offerors or which has constituted or might in the future reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Trust Preferred Securities or otherwise.
(k) Each of the Offerors will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(l) The Offerors will timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Rules and to be registered under Regulations, the Exchange Act; if , and the Preferred Securities are exchanged for DebenturesExchange Act Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listedRules and Regulations, and to have the Debentures registered under the Exchange ActAct and the Exchange Act Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Glacier Water Services Inc)
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Company and the Closing Date, Administrative Trustees on behalf of the Company Trust will deliver to prepare and timely file with the Representatives Commission under Rule 424(b) under the Act a copy Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(dc) During The Offerors will cooperate with you and your counsel in order to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), provided that neither Offeror shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if for any other reason it shall be necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will prepare and file with the Commission an appropriate amendment to the activities Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not 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 Underwriters (in which case circumstances when it is so delivered, not misleading, or so that the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(ef) The Company will, on behalf of the Trust, Offerors will make generally available to the Trust's their security holders, as soon as practicableit is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, thereunder and will otherwise cooperate advise you in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of writing when such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomestatement has been so made available.
(g) The Company will, except for five years from the First Closing Date, deliver to each Underwriter, as herein providedsoon as they are available, pay copies of its annual report and copies of all feesother documents, expenses reports and taxes incident information furnished by the Company to its security holders or filed with any securities exchange pursuant to the performance requirements of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) such exchange or with the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities Commission pursuant to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (Act or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting AgreementAct. The Company shall will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in any event be liable to the Underwriters for damages on account of loss of anticipated profitsCompany's financial statements.
(h) Each The Offerors will apply the net proceeds from the sale of the Offerors will not offer, sell, contract to sell or otherwise dispose Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of any Preferred Securities, any other beneficial interests Proceeds" in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSEcomply with all registration, subject to notice filing and reporting requirements of issuance, and to be registered under the Exchange Act; if Act and the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActNasdaq National Market.
Appears in 1 contract
Samples: Underwriting Agreement (Team Financial Capital Trust I)
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees covenant with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, subject to Section 3(b) hereof, will comply with the Closing Daterequirements of Rule 430A or Rule 434, as applicable, and will notify the Company will deliver Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Representatives a copy Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Offerors will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the form event that it became effective or a conformed copy thereofwas not, certified by an officer it will promptly file such prospectus. The Offerors will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the Company to be in such formlifting thereof at the earliest possible moment.
(b) The Company Offerors will deliver give the Representatives notice of its intention to file or prepare any amendment to the Underwriters as many Registration Statement (including any filing under Rule 462(b)), any Term Sheet or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives with copies of the Prospectus (and any amendments such documents a reasonable amount of time prior to such proposed filing or supplements thereto) use, as the Underwriters case may reasonably requestbe, and will not file or use any such document without the consent of the Representatives, which consent shall not be unreasonably withheld.
(c) The Company Offerors have furnished or will cause deliver to the Prospectus Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed with, or and of each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted for filing to, copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The Offerors will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Offerors will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Capital Securities as contemplated in this Agreement and in compliance the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with Rule 424(b) and will advise the Representatives promptly sales of the issuance Capital Securities, any event shall occur or condition shall exist as a result of any stop order under which it is necessary, in the Securities Act with respect reasonable opinion of counsel for the Underwriters or for the Offerors, to amend the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it in order that the Prospectus will not contain include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing counsel, at any such amendment time to amend the Registration Statement or supplement), amend or supplement the expenses of complying Prospectus in order to comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Offerors will furnish to the Underwriters such number of Section 11(a) copies of such amendment or supplement as the Securities Act and Rule 158 under the Securities ActUnderwriters may reasonably request.
(f) At any time within six months of the date hereof, the The Offerors will furnish such proper information as may be lawfully requireduse their best efforts, in cooperation with the Underwriters, to qualify the Capital Securities for offering and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and other jurisdictions as the Representatives may reasonably designatedesignate and to maintain such qualifications in effect for a period of not less than one year from the later of the effective date of the Registration Statement and any Rule 462(b) Registration Statement; provided, provided however, that the Offerors shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securitiessecurities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Capital Securities have been so qualified, to the Offerors will file any consents to service of process under such statements and reports as may be required by the laws of any jurisdiction, or such jurisdiction to meet any other requirements deemed by continue such qualification in effect for a period of not less than one year from the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing effective date of the Registration Statement and any post-effective amendment thereto, (iiRule 462(b) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.Registration
Appears in 1 contract
Covenants of the Offerors. Each The Offerors covenant and agree with each of the Offerors jointly and severally covenants and agrees with the several Underwriters that:
(a) Not later than The Offerors shall use their best efforts to cause the Closing DateRegistration Statement and any amendments thereto, if not
(b) As soon as the Offerors are advised or obtain knowledge thereof, the Company Offerors will deliver advise the Representative (i) when the Registration Statement, as amended, has become effective; if the provisions of Rule 430A promulgated under the Act will be relied upon, when the Prospectus has been filed in accordance with said Rule 430A and when any post-effective amendment to the Representatives a copy Registration Statement becomes effective; (ii) of any request made by the Commission for amending the Registration Statement, for supplementing any Preliminary Prospectus or the Prospectus or for additional information, or (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement in or any post-effective amendment thereto or any order preventing or suspending the form that it became effective use of any Preliminary Prospectus or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and or any amendments amendment or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to the Registration Statement supplement thereto or the institution or threat of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors investigation or proceeding for that purpose, and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof and, if issued, to obtain the lifting thereof as soon as possible.
(c) The Offerors will (i) use their best efforts to arrange for the qualification of the Trust Preferred Securities for offer and sale under the state securities or blue sky laws of such jurisdictions as the Representative may designate, (ii) continue such qualifications in effect for as long as may be necessary to complete the distribution of the Trust Preferred Securities, and (iii) make such applications, file such documents and furnish such information as may be required for the purposes set forth in clauses (i) and (ii); provided, however, that the Offerors shall not be required to qualify as a foreign corporation or file a general or unlimited consent to service of process in any such jurisdiction.
(d) During The Offerors consent to the use of the Prospectus (and any amendment or supplement thereto) by the Underwriters and all dealers to whom the Trust Preferred Securities may be sold, if any such Prospectus is used, in connection with the offering or sale of the Trust Preferred Securities and for such period of time thereafter as the Underwriters are Prospectus is required by law to deliver be delivered in connection therewith. If, at any time when a prospectus after this Underwriting Agreement has become effectiveProspectus relating to the Trust Preferred Securities is required to be delivered under the Act, if any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so thatProspectus, as supplemented then amended or amendedsupplemented, it will not contain would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereintherein not misleading, in the light of the circumstances when or if it becomes necessary at any time to amend or supplement the Prospectus is delivered to a purchasercomply with the Act or the Rules and Regulations, not misleading. Unless such event relates solely the Offerors promptly will so notify the Representative and, subject to Section 5(a) hereof and at the Offerors' expense, will prepare and file with the Commission an amendment to the activities of Registration Statement or an amendment or supplement to the Underwriters (in Prospectus which case the Underwriters shall assume the expense of preparing any will correct such statement or omission or effect such compliance, each such amendment or supplement), supplement to be reasonably satisfactory to counsel to the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterUnderwriters.
(e) The Company willAs soon as practicable, on behalf but in any event not later than 45 days after the end of the Trust12-month period beginning on the day after the end of the fiscal quarter of the Offerors during which the effective date of the Registration Statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Offerors' fiscal year), the Offerors will make generally available to the Trust's its security holders, as soon as practicablein the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an earning earnings statement (which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited) audited unless required by the Act or the Rules and Regulations, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities ActRegistration Statement.
(f) At any time within six months During a period of five years after the date hereof, the Offerors will furnish such proper information to their stockholders, as may be lawfully requiredsoon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will otherwise cooperate in qualifying deliver to the Preferred Securities and the Debentures for offer and saleRepresentative:
i) concurrently with furnishing such quarterly reports to its stockholders, under the blue sky laws statements of such jurisdictions as the Representatives may reasonably designate, provided that income of the Offerors shall not be required for each quarter in the form furnished to qualify as the Offerors' stockholders;
ii) concurrently with furnishing such annual reports to its stockholders, a foreign corporation or dealer in securities, to file any consents to service balance sheet of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to at the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing end of the Registration Statement preceding fiscal year, together with statements of operations, stockholders' equity, and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (cash flows
iii) legal counsel relating as soon as they are available, copies of all information (financial or other) mailed to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (stockholders;
iv) the printing and delivery to the Underwriters of reasonable quantities of as soon as they are available, copies of all reports and financial statements furnished to or filed with the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may beCommission, the National Association of Securities Dealers, Inc. (the "NASD") or any securities exchange;
v) every press release and every material news item or article of interest to the financial community in connection with its review respect of the terms Offerors or their respective affairs which was released or prepared by the Offerors; and
vi) any additional information of a public nature concerning the Offerors or their business which the Representative may reasonably request. During such five-year period, if the Offerors have active subsidiaries, the foregoing financial statements will be on a consolidated basis to the extent that the accounts of the offeringOfferors are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(viig) the listing of the Preferred Securities The Offerors will maintain a Transfer Agent and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof necessary under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses jurisdiction of incorporation of the UnderwritersOfferors, except that, if this Underwriting Agreement shall a Registrar (which may be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, same entity as the Company will reimburse the Underwriters for (ATransfer Agent) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profitsTrust Preferred Securities.
(h) Each The Offerors will furnish, without charge, to the Representative or on the Representative's order, at such place as the Representative may designate, copies of the Offerors Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities be signed and will include all financial statements and exhibits) and the GuaranteeProspectus, without and all amendments and supplements thereto, in each case as soon as available and in such quantities as the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateRepresentative may reasonably request.
(i) The Offerors will use their best efforts not, directly or indirectly, without the prior written consent of the Representative, issue, offer, sell, grant any option to purchase or otherwise dispose (or announce any issuance, offer, sale, grant of any option to purchase or other disposition) of any shares of the Trust Preferred Securities or any securities convertible into, or exchangeable or exercisable for, shares of Trust Preferred Securities for a period of 180 days after the date hereof, except pursuant to this Agreement, or as contemplated by the Prospectus.
(j) The Offerors will cause the Trust Preferred Securities to be duly authorized included for listing quotation on the NYSENASDAQ National Market prior to the Closing Time.
(k) Neither the Offerors nor any of their officers or directors, subject 5% or more shareholder nor affiliates of any of them (within the meaning of the Rules and Regulations) will take, directly or indirectly, any action designed to notice stabilize or manipulate the price of issuanceany security of the Offerors or which has constituted or might in the future reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Trust Preferred Securities or otherwise.
(l) The Offerors will apply the net proceeds of the offering received by it in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(m) The Offerors will timely file all such reports, forms or other documents as may be required from time to time, under the Act, the Rules and to be registered under Regulations, the Exchange Act; if , and the Preferred Securities are exchanged for DebenturesExchange Act Regulations, and all such reports, forms and documents filed will comply as to form and substance with the applicable requirements under the Act, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listedRules and Regulations, and to have the Debentures registered under the Exchange ActAct and the Exchange Act Regulations.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees covenant with the several Underwriters thateach Underwriter as follows:
(a) Not The Company will use its best efforts to cause the Registration Statement and any post-effective amendments to the Registration Statement to be declared effective by the Commission (as and when specified in the reasonable request of the Representatives) and will prepare the Prospectus in a form reasonably approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under the 1933 Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the 1933 Act. The Company will make no further amendment or any supplement to the Registration Statement or the Prospectus prior to any First Closing DateDate which shall be reasonably disapproved by the Representatives after reasonable notice thereof. The Company will notify the Representatives immediately and confirm the notice in writing (i) when the Registration Statement or any post-effective amendment thereto (and any other amendment thereto) has been declared effective by the Commission, (ii) of the transmittal to the Commission for filing of any amendment or supplement to the Prospectus, (iii) of the receipt by the Company will deliver of any comments from the Commission or any state securities commission with respect to the Representatives a copy transactions contemplated by this Agreement, (iv) of any request by the Commission or any state securities commission for any amendment or supplement to the Registration Statement or the Prospectus, or for additional information, (v) of the issuance by the Commissioner or any state securities commission or court of competent jurisdiction of any order suspending either the Offering or the use of either the Preliminary Prospectus or the Prospectus or of the threat of any such action by any such entity, (vi) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer any amendment thereto or of the receipt by the Company of any notification with respect to be the suspension of the registration, qualification or exemption of the Preferred Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceeding for such formpurpose. In the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such registration, qualification or exemption, the Company promptly will use its best efforts to obtain its withdrawal.
(b) The Company will deliver give the Representatives notice of its intention to file or prepare any amendment or supplement to the Underwriters as many copies of Registration Statement or any amendment or supplement to the Prospectus (whether, in the case of the Registration Statement and any amendments the Prospectus, by the filing of documents pursuant to the 1934 Act, the 1933 Act or supplements thereto) as otherwise and, in the Underwriters may reasonably requestcase of the Prospectus, by amending or supplementing the Prospectus then being used by the Underwriters).
(c) The Company has furnished or will cause deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, from time to time during the period when the Prospectus is required to be filed withdelivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or transmitted supplemented) as such Underwriter may reasonably request for filing to, the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission pursuant thereunder.
(e) If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to amend the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make that the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain include any untrue statement statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing counsel, at any such amendment time to amend the Registration Statement or supplement), the expenses of complying Prospectus in order to comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of Section 11(a) copies of such amendment or supplement as the Securities Act and Rule 158 under the Securities ActUnderwriters may reasonably request.
(f) At If, at the time that the Registration Statement or a post-effective amendment thereto becomes effective, any time within six months information shall have been omitted therefrom in reliance upon Rule 430A of the date hereof1933 Act Regulations, then immediately following effectiveness, the Offerors Company will furnish such proper information as may be lawfully requiredprepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted and will otherwise cooperate use its best efforts to cause any such post-effective amendment to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in qualifying cooperation with the Underwriters, to qualify the Preferred Securities for offering and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and other jurisdictions of the United States as the Representatives may reasonably designatedesignate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, provided however, that the Offerors Company shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities, securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Preferred Securities have been so qualified the Company will file any consents to service of process under such statements and reports as may be required by the laws of any jurisdiction, or such jurisdiction to meet any other requirements deemed by continue such qualification in effect for a period of not less than one year from the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies date of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) The Offerors will not offercooperate with the Underwriters and use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(j) The Trust will use the net proceeds received by it from the sale of the Preferred Securities, and the Company will use the proceeds received by it from the sale of the Subordinated Debentures, in the manners specified in the Prospectus under "Use of Proceeds."
(k) Prior to March __, 2000, neither the Trust nor the Company will, without the prior written consent of the Representatives, directly or indirectly, issue, sell, contract offer or agree to sell sell, grant any option for the sale of, or otherwise dispose of any Preferred Securitiesof, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, security convertible into exchangeable or exercisable for Preferred Securities or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such equity security substantially similar securities of either to the Trust or the Company, Preferred Securities (except for the Trust Securities and issued pursuant to this Agreement or with the Guarantee, without the prior written consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateRepresentatives).
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities 1933 Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act.
(db) During The Offerors will furnish the Underwriters with cxxxxx xx each amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of the Preferred Securities in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Preferred Securities by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriters, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as the case may be, in order to make the Preliminary Supplemented Prospectus or Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Preliminary Supplemented Prospectus or Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Preferred Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preliminary Supplemented Prospectus or Final Supplemented Prospectus which will supplement or amend the Preliminary Supplemented Prospectus or Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Preferred Securities after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the expenses of complying Company will continue to prepare and file with this Section 6(d) shall be borne by the Commission on a timely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company until shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the expiration of nine months from the time of effectiveness of this Underwriting Agreement, Representative and such expenses shall be borne by the Underwriters thereafterDewey Ballantine LLP.
(ec) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully requiredendeavor, and will otherwise cooperate in qualifying xx xxxxxxxxxxx xxxx xxx Xnderwriters, to qualify the Preferred Securities and, to the extent required or advisable, the Guarantee and the Debentures Junior Subordinated Notes, for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earning statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws 1933 Act) covering a twelve-month period beginning not later xxxx xxe first day of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(he) Each During a period of 15 days from the Offerors will not offerdate of this Agreement, neither the Trust nor the Company will, without the Representative's prior written consent, directly or indirectly, sell, contract offer to sell sell, grant any option for the sale of, or otherwise dispose of of, any Preferred Securities, any other beneficial interests in security convertible into or exchangeable into or exercisable for Preferred Securities or the assets of the Trust, Junior Subordinated Notes or any preferred debt securities substantially similar to the Junior Subordinated Notes or any other equity securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, Securities (except for the Trust Securities Junior Subordinated Notes and the Guarantee, without the consent of the Representatives until the earlier Preferred Securities issued pursuant to occur of this Agreement).
(if) thirty (30) days As soon as practicable after the Closing Date and (ii) the date of this Agreement, and in any event within the termination of time prescribed by Rule 424 under the trading restrictions on 1933 Act, to file the Preferred Securities, as determined by Final Supplemented Prospectus with the Underwriters. The Representatives agree Commission and to notify advise the Offerors Representative of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, filing and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Actconfirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors The Offerors, jointly and severally covenants severally, ------------------------- covenant and agrees agree with the several Underwriters that:
(a) Not later than the Closing Date, the Company The Offerors will deliver not file any amendment to the Representatives a copy of the Registration Statement or supplement to the Prospectus of which you have not been advised and furnished with a copy, or to which you have reasonably objected in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such formwriting.
(b) The Company Offerors will deliver advise you promptly of any request of the Commission for an amendment to the Underwriters as many copies of Registration Statement, any Prepricing Prospectus or the Prospectus (or for additional information and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or of the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its best efforts to prevent the issuance of any such stop order and or to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued. The Offerors will advise you promptly of any order or communication of any public authority addressed to the Offerors suspending or threatening to suspend qualification of the Preferred Securities for sale in any jurisdiction.
(dc) During such period If at any time when, to the knowledge of time as either of the Underwriters are required by law to deliver Offerors, a prospectus after this Underwriting Agreement has become effectiverelating to the Preferred Securities is required to be delivered under the Act, if any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact fact, or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading. Unless , the Offerors will promptly notify you thereof and, if such event relates solely occurs within nine months after the effective date of the Registration Statement, the Offerors will at the cost and expense of the Company amend or supplement the Prospectus in order to correct such statement or omission and in order that the Prospectus as so amended or supplemented will comply with the requirements of Section 10(a)(1) of the Act. In case any Underwriter is required to deliver a prospectus relating to the activities Preferred Securities more than nine months after the date of this Agreement, the Underwriters (in which case the Underwriters shall assume Offerors will, at the expense of preparing any the Underwriter requesting the same, prepare promptly such amendment prospectus or supplement)prospectuses and thereafter amend or supplement the same as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, the expenses Company will make generally available to its security holders an earnings statement covering a period of complying with this Section 6(d) shall be borne by at least 12 months beginning after the Company until the expiration of nine months from the time of effectiveness date of this Underwriting Agreement, and such expenses Agreement which shall be borne by satisfy the Underwriters thereafterprovisions of Section 11(a) of the Act.
(e) The Company will, on behalf Offerors will cooperate with the Underwriters in connection with (i) the qualification of the TrustRegistered Securities for sale under the securities laws of such jurisdictions as the Representatives may reasonably designate and the continuance of such qualifications in effect so long as required for the distribution of the Preferred Securities, make generally available provided that neither of the Offerors shall be required to qualify as a foreign corporation in any jurisdiction or to give a general consent to the Trust's security holdersservice of process or to submit to any requirements which it deems unduly burdensome, as soon as practicable, an earning statement and (which need not be auditedii) covering a period of at least twelve months beginning after the "effective date determination of the registration statement" within eligibility of the meaning of Rule 158 Registered Securities for investment by savings banks, trustees and insurance companies under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate.
(f) For a period of five years from the date of this Agreement, provided that the Offerors shall not be required Company will, upon request, deliver to qualify you and to each of the other Underwriters (i) as soon as practicable after the end of each fiscal year, the consolidated financial statements of the Company and its subsidiaries as at the end of and for such year, all in reasonable detail and certified by independent public accountants, (ii) as soon as practicable after the end of each quarterly fiscal period (except for the last quarterly fiscal period of each fiscal year) such consolidated financial statements as at the end of and for such period, all in reasonable detail, (iii) as soon as available, a foreign corporation or dealer in securitiescopy of each report of the Company mailed to stockholders, and (iv) from time to file any consents time such other information concerning the Company as you may reasonably request. For such period the Company will deliver to service you, upon request, as soon as available, a copy of process under each report of the laws of any jurisdiction, or to meet any other requirements deemed by Company filed publicly with the Offerors to be unduly burdensomeCommission.
(g) The Whether or not the transactions contemplated hereunder are consummated or this Agreement becomes effective or is terminated, the Company willwill pay, except as herein providedor reimburse the Underwriters on demand for, pay all fees, costs and expenses and taxes incident to the performance of each Offeror's the Offerors' obligations under this Underwriting Agreement includingAgreement, but not limited toincluding all expenses incident to the preparation, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance execution and delivery of the certificates for the Preferred Securities trust agreements with respect to the UnderwritersTrust, (iii) legal counsel relating to the qualification Indenture, the Guarantee, the Expense Agreement and the authorization of the Preferred Securities and their issue and delivery by the Debentures Trust, any necessary stamp taxes in connection with the foregoing, the fees and expenses of the Offerors' counsel and accountants, any fee of a rating agency incurred by the Representatives, with the Company's consent, in connection with securing a rating of the Preferred Securities, and the costs and expenses incident to the preparation, printing and filing under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies Act of the Registration Statement, the preliminary (or any supplemental) blue sky surveyeach Prepricing Prospectus, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities Agreement and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the The New York Stock Exchange (the "NYSE") and the registration thereof under the Securities and Exchange Act of 1934 as amended (the "Exchange Act"), and the Company will pay, or reimburse all nondefaulting Underwriters, on demand, for, all fees and disbursements (including fees and disbursements of counsel) incurred by the Offerors or the Underwriters in accordance connection with the qualification of the Registered Securities for sale under state securities laws, the determination of the eligibility of the Registered Securities for investment under the laws of such jurisdictions as the Representatives may reasonably designate and the preparation of "Blue Sky" memoranda in an amount not exceeding $7,500, and the cost of furnishing to the Underwriters copies of "Blue Sky" memoranda, the Registration Statement, each Prepricing Prospectus and the Prospectus and (subject to the provisions of clause (c) of this Paragraph 5) each amended and supplemented prospectus and each prospectus prepared to permit compliance with Section 6(i10(a)(3) hereofof the Act. Except as provided above, the The Company shall not not, however, be required to pay for any expenses of the Underwriters, except Representatives' expenses or those of any of the other Underwriters other than as hereinabove set forth; provided that, if this Underwriting Agreement shall not be consummated because terminated in accordance with by the provisions Representatives pursuant to either Paragraph 6 or clause (c) of Section the first paragraph of Paragraph 7, 8 or 12 hereofby reason of any failure, refusal or inability on the part of the Offerors to perform any undertaking or satisfy any condition of this Agreement or to comply with any of the terms hereof on its part to be performed, unless such failure to satisfy said condition or to comply with said terms be due to the default or omission of any Underwriter, then and in any such case the Company will shall reimburse the Underwriters for (A) the reasonable fees and expenses a maximum of Counsel for the Underwriters, whose fees and expenses the Underwriters agree $40,000 to pay in any other event, and (B) cover all reasonable out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred in connection with marketing the Preferred Securities or in contemplation of performing their obligations hereunder; but the performance of this Underwriting Agreement. The Company shall not in any event be liable to any of the Underwriters for damages on account of loss of anticipated profitsprofits from the sale by them of the Preferred Securities.
(h) The Offerors will apply the net proceeds from the sale of the Preferred Securities for the purposes set forth in the Prospectus.
(i) The Offerors will deliver to each Representative (up to a maximum of three) as promptly as practicable a signed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith and signed consents, certificates and opinions of accountants and of any other persons named in the Registration Statement as having prepared, certified or reviewed any part thereof, and will deliver to the Representatives such number of unsigned copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Representatives may reasonably request. The Offerors will deliver to the Representatives, from time to time, as many copies of each Prepricing Prospectus and the Prospectus, as from time to time amended or supplemented, as the Representatives may reasonably request.
(j) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of any such beneficial interests or substantially similar securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such beneficial interest or substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guaranteesecurities, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date of Delivery and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateDate of Delivery.
(ik) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were are then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees agree with the several Underwriters thatas follows:
(a) Not later than Promptly following the Closing Dateexecution of this Agreement, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company Offerors will cause the Prospectus to be filed with, or transmitted for filing to, with the Commission pursuant to Rule 424 of the 1933 Act Regulations and the Offerors will promptly advise the Underwriters when such filing has been made. Prior to the filing, the Offerors will cooperate with the Underwriters in compliance the preparation of such Prospectus to assure that the Underwriters have no reasonable objection to the form or content thereof when filed or mailed.
(b) The Offerors will comply with the requirements of Rule 424(b) 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations if and as applicable, and will advise notify the Representatives promptly Underwriters immediately (i) of the issuance effectiveness of any stop order under the Securities Act with respect post-effective amendment to the Registration Statement or the institution filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings therefor of which either for that purpose and (v) of the Offerors shall have received notice. Each issuance by any state securities commission or other regulatory authority of any order suspending the qualification or the exemption from qualification of the Securities or the Shares under state securities or Blue Sky laws or the initiation or threatening of any proceeding for such purpose. The Offerors will use its best make all reasonable efforts to prevent the issuance of any such stop order and, if any stop order is issued, to promptly obtain the lifting thereof.
(c) The Offerors will give the Underwriters notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment and any filing under Rule 462(b) of the 1933 Act Regulations), any Term Sheet or any amendment, supplement or revision to secure either the prompt removal thereof if issuedprospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise; will furnish the Underwriters with copies of any such Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or revision a reasonable amount of time prior to such proposed filing or use, as the case may be; and will not file any such Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or revision to which the Underwriters or counsel for the Underwriters shall reasonably object.
(d) During such period The Company will deliver to Xxxxxxx Xxxxx and counsel for the Underwriters, without charge, conformed copies of time the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and will also deliver to Xxxxxxx Xxxxx, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. If applicable, the copies of the Registration Statement and each amendment thereto furnished to the Underwriters are will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. If applicable, the Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement and the Prospectus. If at any time when the Prospectus is required by law the 1933 Act or the 1934 Act to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered in connection with sales of the Securities, if any event relating to shall occur or affecting the Company or the Trust, or condition shall exist as a result of which the Company or the Trust shall be advised by the Representatives in writingit is necessary, shall occur which in the opinion of counsel for the Company should be set forth in a supplement Underwriters or amendment for the Offerors, to amend the Prospectus 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 Prospectus statements therein not misleading in the light of the circumstances when it is delivered or to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it in order that the Prospectus will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing counsel, at any such amendment time to amend the Registration Statement or supplement), amend or supplement the expenses of complying Prospectus in order to comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of 1933 Act or the Securities 1933 Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereofRegulations, the Offerors will furnish promptly prepare and file with the Commission, subject to Section 3(c), such proper information amendment or supplement as may be lawfully requirednecessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Offerors will otherwise cooperate furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(g) The Offerors will use their best efforts, in qualifying cooperation with the Preferred Underwriters, to qualify the Securities for offering and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives Representative may reasonably designate; provided, provided however, that the Offerors Company shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer subject itself to taxation in securitiesrespect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified, to the Offerors will file any consents to service of process under such statements and reports as may be required by the laws of any jurisdiction, or such jurisdiction to meet any other requirements deemed by the Offerors to continue such qualification in effect for so long as may be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing required in connection with distribution of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profitsShares.
(h) Each The Company will make generally available to its securityholders as soon as practicable, but not later than 45 days (or 90 days, in the case of a period that is also the Company's fiscal year) after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
(j) If, at the time that the Registration Statement became (or in the case of a post-effective amendment becomes) effective, any information shall have been omitted therefrom in reliance upon Rule 430A or Rule 434 of the 1933 Act Regulations, then immediately following the execution of the Pricing Agreement, the Offerors will not offerprepare, sell, contract to sell and file or otherwise dispose of any Preferred Securities, any other beneficial interests transmit for filing with the Commission in the assets accordance with such Rule 430A or Rule 434 and Rule 424(b) of the Trust1933 Act Regulations, copies of an amended Prospectus or any preferred securities or any other securities Term Sheet, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(k) If the Offerors elect to rely upon Rule 462(b), the Offerors shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until 1933 Act Regulations by the earlier to occur of (i) thirty (30) days after 10:00 p.m. Eastern time on the Closing Date date of the Pricing Agreement and (ii) the date of the termination of the trading restrictions on the Preferred Securitiestime confirmations are sent or given, as determined specified by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateRule 462(b)(2).
(i1) The Offerors, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(m) The Offerors will use their best efforts to effect the listing of the Securities and the Shares on the New York Stock Exchange and to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act0000 Xxx.
(n) During a period of 90 days (or, in the case of debt securities issued pursuant to any medium-term note program of the Company, 14 days) from the date of the Pricing Agreement, neither the Trust nor the Company will, without the prior written consent of Xxxxxxx Xxxxx, (A) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option for the sale of or otherwise transfer or dispose of any Securities, Purchase Contracts, Preferred Securities or Common Stock or any security of the Company similar to the Securities, Purchase Contracts, Preferred Securities or Common Stock or any security convertible into or exchangeable or exercisable for Securities, Purchase Contracts, Preferred Securities, Common Stock or any equity securities substantially similar to the Securities, Purchase Contracts, Preferred Securities or Common Stock; if provided, however, that such restriction shall not affect the ability of the Offerors to take any such action (i) in connection with any employee benefit, dividend reinvestment and stock option or stock purchase plans of the Company or its subsidiaries; (ii) in connection with the offering of the Securities, including the Preferred Securities issued pursuant to this Agreement; (iii) in connection with any securities issued pursuant to or sold in connection with any securities of the Company or its subsidiaries, outstanding as of the date hereof, that are exchanged convertible into or exchangeable or exercisable for Debenturesany securities of the Company and its subsidiaries; (iv) any securities issued pursuant to a merger or acquisition; (v) the Growth PRIDES or Income PRIDES to be created or recreated upon substitution of Pledged Securities, or shares of Common Stock issuable upon early settlement of the Income PRIDES or Growth PRIDES; (vi) upon exercise of stock options or (vii) any securities issued in the ordinary course of business pursuant to any medium-term note program of PHH Corporation; or (B) enter into any swap or any other agreement or any transaction that transfers, or is the equivalent of transferring, in whole or in part, directly or indirectly, the economic equivalent of ownership of the Securities, Purchase Contracts, Preferred Securities or Common Stock, any security convertible into or exchangeable into or exercisable for the Securities, Purchase Contracts, Preferred Securities or Common Stock, or equity securities substantially similar to the Securities, Purchase Contracts, Preferred Securities or Common Stock, whether any such swap or transaction is to be settled by delivery of Securities, Purchase Contracts, Preferred Securities or Common Stock, or other securities, in cash or otherwise.
(o) For a period of two years from the Closing Time, the Company will use furnish to the Representative copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to its best efforts stockholders or securityholders generally, provided, however, that the Company shall not be required to provide the Representative with any such reports or similar forms that have been filed with the Debentures listed on the exchange Commission by electronic transmission pursuant to XXXXX.
(p) The Company will reserve and keep available at all times, free of preemptive or other organization on which similar rights and liens and adverse claims, sufficient shares of Common Stock to satisfy any obligations to issue Shares upon settlement of the Preferred Securities were then listedPurchase Contracts and shall take all actions necessary to keep effective the Registration Statement with respect to the Shares.
(q) Neither the Company nor its Significant Subsidiaries will take, and to have the Debentures registered directly or indirectly, any action resulting in a violation of Regulation M under the Exchange 1934 Act, or designed to cause or result in, or that reasonably might be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or the Common Stock, in each case, in violation of applicable law.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will timely file the Closing Date, Prospectus with the Company Commission pursuant to Rule 424 under the Securities Act. The Offerors have complied and will deliver to comply with Rule 433 under the Representatives a copy Securities Act in connection with the offering and sale of the Registration Statement Preferred Trust Securities, including applicable provisions in respect of timely filing with the form that it became effective or a conformed copy thereofCommission, certified by an officer of the Company to be in such formlegending and record-keeping.
(b) The Company Offerors will prepare a final term sheet, containing a description of the pricing terms of the Offered Securities, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433 under the Securities Act.
(c) FPL Group will deliver or cause to be delivered to the Representatives and to Counsel for the Underwriters one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of FPL Group to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Offered Securities, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date of this agreement, FPL Group will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters Representatives may reasonably request.
(c) The Company will cause request for the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under purposes contemplated by the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issuedAct.
(d) FPL Group [1Capital] has paid or cause to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Preferred Trust Securities as provided in Section [7] hereof and of the other Offered Securities as contemplated hereby, and
(iii) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus, the Subordinated Indenture, the Trust Agreement and the Guarantee Agreement. FPL Group [1Capital] will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Offered Securities. The Offerors shall not, however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters, except that if this agreement shall be terminated in accordance with the provisions of Sections [9] or [10] hereof, FPL Group [1Capital] will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event, and FPL Group [1and/or FPL Group Capital] shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses, reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. None of the Offerors shall in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(e) During such a period of time as nine months after the Underwriters are required by law to deliver a prospectus after date of this Underwriting Agreement has become effectiveagreement, if any event relating to or affecting any of the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, Offerors shall occur which which, in the opinion of the Company FPL Group [1or FPL Group Capital], should be set forth in a supplement to or an amendment to of the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser purchaser, FPL Group [1or FPL Group Capital] will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Preferred Securities, the Company Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend or supplement the Prospectus so that, that as supplemented or amended, amended it will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless ; provided that should such event relates relate solely to the activities of any of the Underwriters (in which case Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until . In case any Underwriter is required to deliver a Prospectus after the expiration of nine months from after the time of effectiveness date of this Underwriting Agreementagreement, and such expenses shall be borne by FPL Group [1or FPL Group Capital] upon the Underwriters thereafter.
(e) The Company will, on behalf request of the Trust, make generally available Representatives will furnish to the Trust's security holdersRepresentatives, as soon as practicableat the expense of such Underwriter, an earning statement (which need not be audited) covering a period reasonable quantity of at least twelve months beginning after a supplemented or amended Prospectus or supplements or amendments to the "effective date Prospectus complying with Section 10 of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will promptly file the Closing Date, Prospectus with the Company Commission pursuant to Rule 424 under the Securities Act.
(b) FPL will deliver to the Representatives a and to Counsel for the Underwriters one signed copy of the Registration Statement in the form that it became effective or or, if a signed copy is not available, one conformed copy thereof, of the Registration Statement certified by an officer of the Company FPL to be in such form.
(b) The Company the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Offered Securities, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date of this agreement, FPL will deliver to the Underwriters through the Representatives as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters Representatives may reasonably requestrequest for the purposes contemplated by the Securities Act.
(c) The Company FPL will pay or cause the Prospectus to be filed withpaid all expenses in connection with the (i) preparation and filing of the Registration Statement and Prospectus, or transmitted (ii) issuance and delivery of the Preferred Trust Securities as provided in Section 6 hereof and of the other Offered Securities as contemplated hereby, and (iii) printing and delivery to the Representatives for filing tothe account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, the Commission pursuant Prospectus, the Subordinated Indenture, the Trust Agreement and the Guarantee Agreement. FPL will pay or cause to and in compliance with Rule 424(b) and will advise the Representatives promptly of be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Offered Securities. The Offerors shall not, however, be required to pay any stop order under amount for any expenses of the Securities Act Representatives or any of the Underwriters, except that if this agreement shall be terminated in accordance with respect the provisions of Sections 8 or 9 hereof, FPL will pay or cause to be paid the Registration Statement or fees and disbursements of Counsel for the institution Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event and FPL shall reimburse the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of any proceedings therefor an aggregate of which either $5,000. Neither of the Offerors shall have received notice. Each in any event be liable to any of the Offerors will use its best efforts to prevent the issuance several Underwriters for damages on account of any such stop order and to secure the prompt removal thereof if issuedloss of anticipated profits.
(d) During such a period of time as nine months after the Underwriters are required by law to deliver a prospectus after date of this Underwriting Agreement has become effectiveagreement, if any event relating to or affecting either of the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, Offerors shall occur which which, in the opinion of the Company FPL, should be set forth in a supplement to or an amendment to of the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser purchaser, FPL will forthwith at its expense prepare and furnish to the Representatives a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preferred Securities, the Company Prospectus which will supplement or amend or supplement the Prospectus so that, that as supplemented or amended, amended it will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless ; provided that should such event relates relate solely to the activities of any of the Underwriters (in which case Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until . In case any Underwriter is required to deliver a Prospectus after the expiration of nine months from after the time of effectiveness date of this Underwriting Agreementagreement, and FPL upon the request of the Representatives will furnish to the Representatives, at the expense of such expenses shall be borne by Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Underwriters thereafterProspectus complying with Section 10 of the Securities Act.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, required and will otherwise cooperate in qualifying the Preferred Securities Trust Securities, the Trust Guarantee, and to the Debentures extent required or advisable, the other Offered Securities, for offer and sale, sale under the blue sky laws of such jurisdictions as the Representatives may reasonably designatedesignate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that neither of the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors either Offeror to be unduly burdensome.
(f) FPL will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of the Securities Act) for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(g) The Company will, except as herein provided, pay all fees, expenses Offerors will advise the Representatives promptly of the filing of the Prospectus pursuant to Rule 424 and taxes incident of any amendment or supplement to the performance Prospectus or Registration Statement or, prior to the termination of each Offeror's obligations under this Underwriting Agreement includingthe offering of the Offered Securities hereunder, but not limited toof official notice of the institution of proceedings for, (i) or the preparation and filing entry of, a stop order suspending the effectiveness of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicablesuch a stop order should be entered, use every commercially reasonable effort to obtain the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profitsprompt removal thereof.
(h) Each If Subordinated Debentures are distributed to holders of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets Trust Securities upon liquidation of the Trust, FPL will take such action as is required in order to comply with (or any preferred be exempt from) all applicable securities or any other securities blue sky laws of the Trust or various jurisdictions in the Company that are substantially similar to United States in connection with such distribution. The provisions of this Section 7(h) shall survive the delivery of the Preferred Trust Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Samples: Underwriting Agreement (Florida Power & Light CO Trust II)
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees covenant with the several Underwriters thateach Underwriter as follows:
(a) Not The Company will use its best efforts to cause the Registration Statement and any post-effective amendments to the Registration Statement to be declared effective by the Commission (as and when specified in the reasonable request of the Representative) and will prepare the Prospectus in a form reasonably approved by the Representative and file such Prospectus pursuant to Rule 424(b) under the 1933 Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the 1933 Act. The Company will make no further amendment or any supplement to the Registration Statement or the Prospectus prior to any First Closing DateDate which shall be reasonably disapproved by the Representative after reasonable notice thereof. The Company will notify the Representative immediately and confirm the notice in writing (i) when the Registration Statement or any post-effective amendment thereto (and any other amendment thereto) has been declared effective by the Commission, (ii) of the transmittal to the Commission for filing of any amendment or supplement to the Prospectus, (iii) of the receipt by the Company will deliver of any comments from the Commission or any state securities commission with respect to the Representatives a copy transactions contemplated by this Agreement, (iv) of any request by the Commission or any state securities commission for any amendment or supplement to the Registration Statement or the Prospectus, or for additional information, (v) of the issuance by the Commissioner or any state securities commission or court of competent jurisdiction of any order suspending either the Offering or the use of either the Preliminary Prospectus or the Prospectus or of the threat of any such action by any such entity, (vi) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer any amendment thereto or of the receipt by the Company of any notification with respect to be the suspension of the registration, qualification or exemption of the Capital Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceeding for such formpurpose. In the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such registration, qualification or exemption, the Company promptly will use its best efforts to obtain its withdrawal.
(b) The Company will deliver give the Representative notice of its intention to file or prepare any amendment or supplement to the Underwriters as many copies of Registration Statement or any amendment or supplement to the Prospectus (whether, in the case of the Registration Statement and any amendments the Prospectus, by the filing of documents pursuant to the 1934 Act, the 1933 Act or supplements thereto) as otherwise and, in the Underwriters may reasonably requestcase of the Prospectus, by amending or supplementing the Prospectus then being used by the Underwriters).
(c) The Company has furnished or will cause deliver to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representative a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, from time to time during the period when the Prospectus is required to be filed withdelivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or transmitted supplemented) as such Underwriter may reasonably request for filing to, the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission pursuant thereunder.
(e) If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to amend the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make that the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain include any untrue statement statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing counsel, at any such amendment time to amend the Registration Statement or supplement), the expenses of complying Prospectus in order to comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of Section 11(a) copies of such amendment or supplement as the Securities Act and Rule 158 under the Securities ActUnderwriters may reasonably request.
(f) At If, at the time that the Registration Statement or a post-effective amendment thereto becomes effective, any time within six months information shall have been omitted therefrom in reliance upon Rule 430A of the date hereof1933 Act Regulations, then immediately following effectiveness, the Offerors Company will furnish such proper information as may be lawfully requiredprepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted and will otherwise cooperate use its best efforts to cause any such post-effective amendment to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in qualifying cooperation with the Preferred Underwriters, to qualify the Capital Securities for offering and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and other jurisdictions of the United States as the Representatives Representative may reasonably designatedesignate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, provided however, that the Offerors Company shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities, securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Capital Securities have been so qualified the Company will file any consents to service of process under such statements and reports as may be required by the laws of any jurisdiction, or such jurisdiction to meet any other requirements deemed by continue such qualification in effect for a period of not less than one year from the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies date of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors The Company will make generally available to its security holders as soon as practicable, but not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) later than 90 days after the Closing Date and (ii) the date close of the termination period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the trading restrictions on 1933 Act Regulations) covering a 12-month period beginning not later than the Preferred Securities, first day of the Company's fiscal quarter next following the "effective date" (as determined by defined in said Rule 158) of the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateRegistration Statement.
(i) The Offerors will cooperate with the Underwriters and use their best efforts to cause permit the Preferred Capital Securities to be duly authorized eligible for listing on clearance and settlement through the NYSE, subject to notice facilities of issuanceDTC.
(j) The Trust will use the net proceeds received by it from the sale of the Capital Securities, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts the proceeds received by it from the sale of the Subordinated Debentures, in the manners specified in the Prospectus under "Use of Proceeds."
(k) Prior to have _____________, 1998, neither the Debentures listed on Trust nor the exchange Company will, without the prior written consent of Wheat First, directly or other organization on which indirectly, issue, sell, offer or agree to sell, grant any option for the Preferred sale of, or otherwise dispose of, any securities that are substantially similar to the Capital Securities, any security convertible into exchangeable or exercisable for Capital Securities were then listed, and or any equity security substantially similar to have the Debentures registered under Capital Securities (except for the Exchange ActSecurities issued pursuant to this Agreement or with the prior written consent of Wheat First).
Appears in 1 contract
Samples: Underwriting Agreement (City Holding Capital Trust Ii)
Covenants of the Offerors. Each of the Offerors The Offerors, jointly and severally covenants severally, covenant and agrees agree with the several Underwriters that:
(a) Not later than If the Closing Date, the Company will deliver to the Representatives a copy effective time of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver is not prior to the Underwriters as many copies execution and delivery of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withthis Agreement, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent cause the Registration Statement to become effective at the earliest possible time and, upon notification from the Commission that the Registration Statement has become effective, will so advise the Underwriter's and counsel to the Underwriters promptly. If the effective time of the Registration Statement is prior to the execution and delivery of this Agreement and any information shall have been omitted therefrom in reliance upon Rule 430A, the Offerors, at the earliest possible time, will furnish the Underwriters with a copy of the Prospectus to be filed by the Offerors with the Commission to comply with Rule 424(b) and Rule 430A under the Act and, if the Underwriters do not object to the contents thereof, will comply with such Rules. Upon compliance with such Rules, the Offerors will so advise the Underwriters promptly. The Offerors will advise the Underwriters and counsel to the Underwriters promptly of the issuance by the Commission or any state securities commission of any such stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose, or of any notification of the suspension of qualification of the Designated Preferred Securities for sale in any jurisdiction or the initiation or threatening of any proceedings for that purpose, and will also advise the Underwriters and counsel to secure the prompt removal thereof Underwriters promptly of any request of the Commission for 16 Robexx X. Xxxxx & Xo. Incorporated December ______, 1997 Page 16 amendment or supplement of the Registration Statement, of any Preliminary Prospectus or of the Prospectus, or for additional information, and the Offerors will not file any amendment or supplement to the Registration Statement (either before or after it becomes effective), to any Preliminary Prospectus or to the Prospectus (including a prospectus filed pursuant to Rule 424(b)), or file any document under the Exchange Act before the termination of the public offering of the Designated Preferred Securities by the Underwriters if issuedsuch document would be deemed to be incorporated by reference in the Registration Statement, if the Underwriters have not been furnished with a copy prior to such filing (with a reasonable opportunity to review such amendment or supplement) or if the Underwriters object to such filing.
(db) During such period of If, at any time as when a prospectus relating to the Underwriters are Designated Preferred Securities is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered in connection with sales by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact fact, or would omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading. Unless such event relates solely , or if it is necessary at any time to supplement the activities of Prospectus to comply with the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment Act or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 file under the Securities Exchange Act any document which would be deemed to be incorporated by reference in the Registration Statement to comply with the Act or the Exchange Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors promptly will furnish such proper information as may be lawfully required, advise the Underwriters and counsel to the Underwriters and will otherwise cooperate in qualifying promptly prepare and file with the Preferred Securities and the Debentures for offer and saleCommission, under the blue sky laws of such jurisdictions as the Representatives may reasonably designateat its expense, provided that the Offerors shall not be required an amendment to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and or file such document which will correct such statement or omission or an amendment which will effect such compliance; and, if any post-Underwriter is required to deliver a prospectus after the effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies date of the Registration Statement, the preliminary (or any supplemental) blue sky surveyOfferors, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses upon request of the Underwriters, except that, if this Underwriting Agreement shall will prepare promptly such prospectus or prospectuses as may be terminated in accordance necessary to permit compliance with the provisions requirements of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.10(a)(3)
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will timely file the Closing Date, Prospectus and any preliminary prospectus used in connection with the Company will deliver to the Representatives a copy offering of the Registration Statement Preferred Trust Securities with the Commission pursuant to Rule 424. The Offerors have complied and will comply with Rule 433 under the Securities Act in connection with the form that it became effective or a conformed copy thereof, certified by an officer offering and sale of the Company to be Preferred Trust Securities, including applicable provisions in such formrespect of timely filing with the Commission, legending and record-keeping.
(b) The Company Offerors will prepare a final term sheet, containing a description of the pricing terms of the Offered Securities, substantially in the form of Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission pursuant to Rule 433 under the Securities Act.
(c) FPL will deliver or cause to be delivered to the Representatives and to Counsel for the Underwriters one signed copy of the Registration Statement or, if a signed copy is not available, one conformed copy of the Registration Statement certified by an officer of FPL to be in the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to the Offered Securities, including a signed or conformed copy of each consent and certificate included therein or filed as an exhibit thereto. As soon as practicable after the date of this agreement, FPL will deliver or cause to be delivered to the Underwriters through the Representatives as many copies of the Prospectus (and any amendments or supplements thereto) Issuer Free Writing Prospectus as the Underwriters Representatives may reasonably request.
(c) The Company will cause request for the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under purposes contemplated by the Securities Act with respect to the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issuedAct.
(d) FPL has paid or cause to be paid or will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement, any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus, (ii) issuance and delivery of the Preferred Trust Securities as provided in Section 6 hereof and of the other Offered Securities as contemplated hereby, and (iii) printing and delivery to the Representatives for the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, any preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus, the Subordinated Indenture, the Trust Agreement and the Guarantee Agreement. FPL will pay or cause to be paid all taxes, if any (but not including any transfer taxes), on the issuance of the Offered Securities. The Offerors shall not, however, be required to pay any amount for any expenses of the Representatives or any of the Underwriters, except that if this agreement shall be terminated in accordance with the provisions of Sections 8 or 9 hereof, FPL will pay or cause to be paid the fees and disbursements of Counsel for the Underwriters, whose fees and disbursements the Underwriters agree to pay in any other event and FPL shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably incurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000 for such out-of-pocket expenses. Neither of the Offerors shall in any event be liable to any of the several Underwriters for damages on account of loss of anticipated profits.
(e) During such a period of time as nine months after the Underwriters are required by law to deliver a prospectus after date of this Underwriting Agreement has become effectiveagreement, if any event relating to or affecting either of the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, Offerors shall occur which which, in the opinion of the Company FPL, should be set forth in a supplement to or an amendment to of the Prospectus (including an Issuer Free Writing Prospectus) in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser purchaser, FPL will forthwith at its expense prepare, file with the Commission, if required, and furnish to the Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Preferred Securities, the Company Prospectus (including an Issuer Free Writing Prospectus) which will supplement or amend or supplement the Prospectus so that, that as supplemented or amended, amended it will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. Unless ; provided that should such event relates relate solely to the activities of any of the Underwriters (in which case Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until . In case any Underwriter is required to deliver a Prospectus after the expiration of nine months from after the time of effectiveness date of this Underwriting Agreementagreement, and such expenses shall be borne by FPL upon the Underwriters thereafter.
(e) The Company will, on behalf request of the Trust, make generally available Representatives will furnish to the Trust's security holdersRepresentatives, as soon as practicableat the expense of such Underwriter, an earning statement (which need not be audited) covering a period reasonable quantity of at least twelve months beginning after a supplemented or amended Prospectus or supplements or amendments to the "effective date Prospectus complying with Section 10 of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the The Offerors will furnish such proper information as may be lawfully required, required and will otherwise cooperate in qualifying the Preferred Securities Trust Securities, the Trust Guarantee, and to the Debentures extent required or advisable, the other Offered Securities, for offer and sale, sale under the blue sky laws of such United States jurisdictions as the Representatives may reasonably designatedesignate and will pay or cause to be paid filing fees and expenses (including fees of counsel not to exceed $5,000 and reasonable disbursements of counsel), provided that neither of the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, or to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors either Offeror to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident FPL will timely file such reports pursuant to the performance Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement (which need not be audited, unless required so to be under Section 11(a) of each Offeror's obligations under this Underwriting Agreement includingthe Securities Act) for the purposes of, but and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(h) Prior to the termination of the offering of the Preferred Trust Securities, the Offerors will not limited to, (i) the preparation and filing of file any amendment to the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement theretoto the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton & Xxxxxxxx LLP, except who are acting as otherwise provided counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in paragraph (d) of this Section 6writing, (v) or which shall be unsatisfactory to Counsel for the rating of Underwriters. The Offerors have not made any offer relating to the Preferred Trust Securities and that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Debentures Offerors with the Commission or retained by one or more nationally recognized statistical rating agenciesthe Offerors under Rule 433 under the Securities Act, (vi) filings or other notices (if any) with or to, than a pricing term sheet substantially in the form as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offeringset forth on Schedule I, and (vii) will not make any such offer without prior notice to the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") Representatives and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either offer to which the Trust Representatives shall reasonably object in writing, or the Company, except which shall be unsatisfactory to Counsel for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts advise the Representatives promptly of the filing of the Prospectus pursuant to cause Rule 424, of the filing of any material pursuant to Rule 433 and of any amendment or supplement to the Pricing Disclosure Package or the Registration Statement or, prior to the termination of the offering of the Preferred Trust Securities to be duly authorized for listing on the NYSEhereunder, subject to of official notice of issuancethe institution of proceedings for, and or the entry of, a stop order suspending the effectiveness of the Registration Statement, of receipt from the Commission of any notice of objection to be registered the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Exchange Securities Act; , and, if such a stop order should be entered, or notice of objection should be received, use every commercially reasonable effort to obtain the prompt removal thereof.
(j) If Subordinated Debentures are distributed to holders of Preferred Trust Securities upon liquidation of the Trust, FPL will take such action as is required in order to comply with (or be exempt from) all applicable securities or blue sky laws of the various jurisdictions in the United States in connection with such distribution. The provisions of this Section 7(h) shall survive the delivery of the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActTrust Securities.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will prepare and timely file with the Closing Date, Commission under Rule 424(b) under the Company will deliver to Act a Prospectus containing information previously omitted at the Representatives a copy time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the
(c) The Offerors will cooperate with you and your counsel in order to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and to secure continue such qualifications in effect for so long as the prompt removal thereof if issuedUnderwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), provided that neither Offeror shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.
(d) During such period The Offerors will furnish the Underwriters with as many copies of time any Preliminary Prospectus as the Underwriters are may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing , or if for any such amendment or supplement), the expenses of complying with this Section 6(d) other reason it shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of necessary at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of to amend or supplement the date hereofProspectus to comply with any law, the Offerors promptly will furnish such proper information as may be lawfully required, prepare and will otherwise cooperate in qualifying file with the Preferred Securities and Commission an appropriate amendment to the Debentures for offer and sale, under Registration Statement or supplement to the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided Prospectus so that the Offerors shall Prospectus as so amended or supplemented will not be required include an untrue statement of a material fact or omit to qualify as a foreign corporation or dealer state any material fact necessary in securitiesorder to make the statements therein in light of the circumstances when it is so delivered, to file any consents to service of process under the laws of any jurisdictionnot misleading, or to meet any other requirements deemed by so that the Offerors to be unduly burdensomeProspectus will comply with law.
(g) The Company will, except for five years from the Closing Date, deliver to each Underwriter, as herein providedsoon as they are available, pay copies of its annual report and copies of all feesother documents, expenses reports and taxes incident information furnished by the Company to its security holders or filed with any securities exchange pursuant to the performance requirements of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) such exchange or with the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities Commission pursuant to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (Act or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting AgreementAct. The Company shall will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in any event be liable to the Underwriters for damages on account of loss of anticipated profitsCompany's financial statements.
(h) Each The Offerors will apply the net proceeds from the sale of the Offerors will not offer, sell, contract to sell or otherwise dispose Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of any Preferred Securities, any other beneficial interests Proceeds" in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSEcomply with all registration, subject to notice filing and reporting requirements of issuance, and to be registered under the Exchange Act; if Act and the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActNasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities 1933 Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act.
(db) During The Offerors will furnish the Underwriters with copxxx xx xach amendment and supplement to the Final Supplemented Prospectus relating to the offering of the Preferred Securities in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Preferred Securities by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriters, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Preferred Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Preferred Securities after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the expenses of complying Company will continue to prepare and file with this Section 6(d) shall be borne by the Commission on a timely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company until shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the expiration of nine months from the time of effectiveness of this Underwriting Agreement, Representative and such expenses shall be borne by the Underwriters thereafterDewey Ballantine LLP.
(ec) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully requiredendeavor, and will otherwise cooperate in qualifying cooperatxxx xxxx xxx Xxxerwriters, to qualify the Preferred Securities and, to the extent required or advisable, the Guarantee and the Debentures Junior Subordinated Notes, for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earnings statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws 1933 Act) covering a twelve-month period beginning not later txxx xxx first day of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary .
(or any supplementale) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) The Offerors will use best efforts to effect the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange ActExchange; if the Preferred Securities are exchanged for DebenturesJunior Subordinated Notes, the Company will use its best efforts to have effect the Debentures listed listing of the Junior Subordinated Notes on the any exchange or other organization on which the Preferred Securities were are then listed.
(f) During a period of 15 days from the date of this Agreement, neither the Trust nor the Company will, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or Junior Subordinated Notes or any debt securities substantially similar to the Junior Subordinated Notes or equity securities substantially similar to the Preferred Securities (except for the Junior Subordinated Notes and the Preferred Securities issued pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and to have in any event within the Debentures registered time prescribed by Rule 424 under the Exchange 1933 Act, the Offerors will file the Final Supplemented Prospectus with the Commission and advise the Representative of such filing and confirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees covenant with the several Underwriters thateach Underwriter as follows:
(a) Not The Company will use its best efforts to cause the Registration Statement and any post-effective amendments to the Registration Statement to be declared effective by the Commission (as and when specified in the reasonable request of the Representative) and will prepare the Prospectus in a form reasonably approved by the -12- Representative and file such Prospectus pursuant to Rule 424(b) under the 1933 Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the 1933 Act. The Company will make no further amendment or any supplement to the Registration Statement or the Prospectus prior to any First Closing DateDate which shall be reasonably disapproved by the Representative after reasonable notice thereof. The Company will notify the Representative immediately and confirm the notice in writing (i) when the Registration Statement or any post-effective amendment thereto (and any other amendment thereto) has been declared effective by the Commission, (ii) of the transmittal to the Commission for filing of any amendment or supplement to the Prospectus, (iii) of the receipt by the Company will deliver of any comments from the Commission or any state securities commission with respect to the Representatives a copy transactions contemplated by this Agreement, (iv) of any request by the Commission or any state securities commission for any amendment or supplement to the Registration Statement or the Prospectus, or for additional information, (v) of the issuance by the Commissioner or any state securities commission or court of competent jurisdiction of any order suspending either the Offering or the use of either the Preliminary Prospectus or the Prospectus or of the threat of any such action by any such entity, (vi) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer any amendment thereto or of the receipt by the Company of any notification with respect to be the suspension of the registration, qualification or exemption of the Capital Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceeding for such formpurpose. In the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such registration, qualification or exemption, the Company promptly will use its best efforts to obtain its withdrawal.
(b) The Company will deliver give the Representative notice of its intention to file or prepare any amendment or supplement to the Underwriters as many copies of Registration Statement or any amendment or supplement to the Prospectus (whether, in the case of the Registration Statement and any amendments the Prospectus, by the filing of documents pursuant to the 1934 Act, the 1933 Act or supplements thereto) as otherwise and, in the Underwriters may reasonably requestcase of the Prospectus, by amending or supplementing the Prospectus then being used by the Underwriters).
(c) The Company has furnished or will cause deliver to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representative a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, from time to time during the period when the Prospectus is required to be filed withdelivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or transmitted supplemented) as such Underwriter may reasonably request for filing to, the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission pursuant thereunder.
(e) If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to amend the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make that the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain include any untrue statement statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing counsel, at any such amendment time to amend the Registration Statement or supplement), the expenses of complying Prospectus in order to comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of Section 11(a) copies of such amendment or supplement as the Securities Act and Rule 158 under the Securities ActUnderwriters may reasonably request.
(f) At If, at the time that the Registration Statement or a post-effective amendment thereto becomes effective, any time within six months information shall have been omitted therefrom in reliance upon Rule 430A of the date hereof1933 Act Regulations, then immediately following effectiveness, the Offerors Company will furnish such proper information as may be lawfully requiredprepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted and will otherwise cooperate use its best efforts to cause any such post-effective amendment to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in qualifying cooperation with the Preferred Underwriters, to qualify the Capital Securities for offering and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and other jurisdictions of the United States as the Representatives Representative may reasonably designatedesignate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, provided however, that the Offerors Company shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities, securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Capital Securities have been so qualified the Company will file any consents to service of process under such statements and reports as may be required by the laws of any jurisdiction, or such jurisdiction to meet any other requirements deemed by continue such qualification in effect for a period of not less than one year from the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies date of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors The Company will make generally available to its security holders as soon as practicable, but not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) later than 90 days after the Closing Date and (ii) the date close of the termination period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the trading restrictions on 1933 Act Regulations) covering a 12-month period beginning not later than the Preferred Securities, first day of the Company's fiscal quarter next following the "effective date" (as determined by defined in said Rule 158) of the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateRegistration Statement.
(i) The Offerors will cooperate with the Underwriters and use their best efforts to cause permit the Preferred Capital Securities to be duly authorized eligible for listing on clearance and settlement through the NYSE, subject to notice facilities of issuanceDTC.
(j) The Trust will use the net proceeds received by it from the sale of the Capital Securities, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts the proceeds received by it from the sale of the Subordinated Debentures, in the manners specified in the Prospectus under "Use of Proceeds."
(k) Prior to have ____________, 1999, neither the Debentures listed on Trust nor the exchange Company will, without the prior written consent of Wheat First, directly or other organization on which indirectly, issue, sell, offer or agree to sell, grant any option for the Preferred sale of, or otherwise dispose of, any securities that are substantially similar to the Capital Securities, any security convertible into exchangeable or exercisable for Capital Securities were then listed, and or any equity security substantially similar to have the Debentures registered under Capital Securities (except for the Exchange ActSecurities issued pursuant to this Agreement or with the prior written consent of Wheat First).
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters thatUnderwriter as follows:
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy Underwriter conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto, except exhibits incorporated by reference, unless specifically requested). As soon as the form that it became effective or a conformed copy Company is advised thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Underwriter orally of the issuance of any stop order under the Securities Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriter sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) and, from time to time, as many copies of the Prospectus and the Final Supplemented Prospectus as the Underwriter may reasonably request for the purposes contemplated by the Securities Act or the Exchange Act.
(db) During The Offerors will furnish the Underwriter with copies of each amendment and supplement to the Prospectus and the Final Supplemented Prospectus relating to the offering of the Notes in such period of time quantities as the Underwriters are Underwriter may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Notes by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriter, shall occur occur, which in the opinion of the Company or of Underwriter's counsel should be set forth in a supplement to or an amendment to of the Final Supplemented Prospectus in order to make the Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Final Supplemented Prospectus or to file under the Exchange Act any document incorporated by reference in the Final Supplemented Prospectus in order to comply with the Securities Act or the Exchange Act, the Company forthwith will (i) notify the Underwriter to suspend solicitation of purchases of the Notes and (ii) at its expense, make any such filing or prepare and furnish to the Underwriter a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Final Supplemented Prospectus which will supplement or amend the Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case the Underwriter is required to deliver a prospectus in connection with the sale of any Notes after the expiration of the period specified in the preceding sentence, the Company, upon the request of the Underwriter, will furnish to the activities of the Underwriters (in which case the Underwriters shall assume Underwriter, at the expense of preparing any such amendment the Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the expenses of Final Supplemented Prospectus, complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a10(a) of the Securities Act. During the period specified in the second sentence of this subsection, the Company will continue to prepare and file with the Commission on a timely basis all documents or amendments required under the Exchange Act and Rule 158 under the Securities Actrules and regulations thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the Underwriter and Dewey Ballantine LLP.
(fc) At any time within six months of The Offerors will endeavox, xx xxxxxxxxxon with the date hereofUnderwriter, to qualify the Notes and, to the extent required or advisable, the Offerors will furnish such proper information as may be lawfully requiredNotes Guarantee, for offering and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Underwriter may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earnings statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws Securities Act) covering a twelve-month period beginning not later than the first day of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement, neither SoCo Capital nor the preliminary (Company will, without the Underwriter's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Notes, any security convertible into or exchangeable into or exercisable for the Notes or any supplemental) blue sky survey, any Preliminary Prospectus debt securities substantially similar to the Notes (except for the Notes issued pursuant to this Agreement and the Prospectus and any amendment or supplement theretoSeries A 5.30% Senior Notes due February 1, except 2007).
(f) As soon as otherwise provided in paragraph (d) practicable after the date of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offeringAgreement, and (vii) in any event within the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof time prescribed by Rule 424 under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereofSecurities Act, the Company will reimburse file the Underwriters for (A) Final Supplemented Prospectus with the reasonable fees Commission and expenses of Counsel for will advise the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee Underwriter of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any filing and will confirm such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Dateadvice in writing.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Samples: Underwriting Agreement (Southern Co)
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Company and the Closing Date, Administrative Trustees on behalf of the Company Trust will deliver to prepare and timely file with the Representatives Commission under Rule 424(b) under the Act a copy Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(dc) During The Offerors will cooperate with you and your counsel in order to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), provided that neither Offeror shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if for any other reason it shall be necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will prepare and file with the Commission an appropriate amendment to the activities Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not 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 Underwriters (in which case circumstances when it is so delivered, not misleading, or so that the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(ef) The Company will, on behalf of the Trust, Offerors will make generally available to the Trust's security holdersholders of Preferred Securities, as soon as practicableit is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, thereunder and will otherwise cooperate advise you in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of writing when such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomestatement has been so made available.
(g) The Company will, except for five years from the First Closing Date, deliver to each Underwriter, as herein providedsoon as they are available, pay copies of its annual report and copies of all feesother documents, expenses reports and taxes incident information furnished by the Company to its security holders or filed with any securities exchange pursuant to the performance requirements of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) such exchange or with the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities Commission pursuant to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (Act or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting AgreementAct. The Company shall will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in any event be liable to the Underwriters for damages on account of loss of anticipated profitsCompany's financial statements.
(h) Each The Offerors will apply the net proceeds from the sale of the Offerors will not offer, sell, contract to sell or otherwise dispose Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of any Preferred Securities, any other beneficial interests Proceeds" in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSEcomply with all registration, subject to notice filing and reporting requirements of issuance, and to be registered under the Exchange Act; if Act and the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActAmerican Stock Exchange.
Appears in 1 contract
Samples: Underwriting Agreement (Front Range Capital Trust I)
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees agree with the several Underwriters Purchasers that:
(a) Not later than the Closing Date, the The Company will deliver pay or cause to the Representatives a copy be paid reasonable counsel fees and expenses of the Registration Statement Offerors and the Purchasers in connection with the form that it became effective or a conformed copy thereof, certified by an officer issuance and delivery of the Trust Preferred Securities as provided in Section 6 hereof and of the other Offered Securities as contemplated hereby. The Company will pay or cause to be in such formpaid all taxes, if any, on the issuance of the Offered Securities.
(b) As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, shares of Stock for the purpose of enabling the Company to issue the Warrants and the Stock issuable upon the exercise of the Warrants. The number of shares so reserved from time to time, as theretofore increased or reduced as hereinafter provided, may be reduced by the number of shares actually delivered pursuant to any exercise of the Warrants and the number of shares so reserved shall be increased or decreased to reflect potential increases or decreases in the Stock that the Company will deliver may thereafter be obligated to issue by reason of adjustments to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably requestWarrants.
(c) The If, on or prior to August 31, 2003, the Company will cause the Prospectus does not disclose in a public press release (and, if required, in any report required to be filed with, or transmitted for filing towith the Commission) such material nonpublic information that has been provided to the Purchasers in connection with the transactions contemplated by the Company Transaction Documents, the Commission pursuant knowledge of which by a Purchaser without public disclosure (or such filing with the Commission) could reasonably be construed as limiting a Purchaser's ability to and in compliance with Rule 424(bpurchase or sell the Offered Securities (the "Disclosure"), then the per annum interest rate under the Notes will increase by 0.5%, to be effective from September 1, 2003 until the last to occur of (i) and will advise the Representatives promptly date of the issuance of any stop order Disclosure and (ii) September 30, 2003. Such adjustment in the interest rate under the Securities Act with respect Notes, if any, shall be deemed to be liquidated damages and not a penalty, and shall be the sole monetary remedy available to any holder of the Notes for the failure of the Company to provide Disclosure as required in this subsection (c); provided, however, that nothing contained in this subsection (c) shall modify or otherwise affect any rights Purchasers have under Section 3(e) of the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issuedRights Agreement.
(d) During such period of time as The Company shall not seek judicial relief from its obligations hereunder. In the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or becomes a debtor under the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred SecuritiesBankruptcy Code, the Company will amend or supplement hereby acknowledges that the Prospectus so thatprovisions of 11 U.S.C. Sec. 365(c)(2) shall apply to this Agreement, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in Trust Agreement and the light terms of the circumstances when Warrants and the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterTrust Preferred Securities.
(e) The Company willshall, on behalf at all times, in any financial statement or other report filed with the Commission or distributed to shareholders, describe the Offered Securities as debt, as described in Exhibit I hereto. The Company acknowledges that each Purchaser is relying upon the separate and independent existence of the TrustTrust as an entity distinct from the Company and not liable for the debts, make generally available obligations or liabilities of, or claims against, the Company (collectively, "Company Claims"), and the Company shall not take any action, or fail to take any action, which action or failure shall cause the Trust to become obligated or liable for any Company Claims. The Company shall not assert, and shall cause any Person controlled by the Company not to assert, any claims against the Trust except as specifically provided in the Trust Agreement. Without limiting the foregoing, the Company shall not assert, and shall cause any Person controlled by the Company not to assert, (i) any defense to the TrustCompany's security holdersliability under the Notes and obligations under the Warrants, as soon as practicable, an earning statement or (which need not be auditedii) covering a period any right of at least twelve months beginning after offset or right of recoupment with respect to the "effective date claims of the registration statement" within Trust against the meaning of Rule 158 Company under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities ActNotes.
(f) At any time within six months The Trust shall conduct its affairs in its own name and strictly in accordance with the Trust Charter Documents and observe all necessary, appropriate and customary trust formalities, including, but not limited to, holding all regular and special meetings appropriate to authorize all actions, keeping separate and accurate minutes of the date hereofits meetings, the Offerors will furnish such proper information as may passing all resolutions or consents necessary to authorize actions taken or to be lawfully requiredtaken, and will otherwise cooperate in qualifying the Preferred Securities maintaining accurate and the Debentures for offer separate books, records and saleaccounts, under the blue sky laws of such jurisdictions as the Representatives may reasonably designateincluding, provided that the Offerors shall but not be required to qualify as a foreign corporation or dealer in securitieslimited to, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomepayroll and intercompany transaction accounts.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident will use its commercially reasonable best efforts to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates obtain for the Trust Preferred Securities to the UnderwritersSecurities, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictionsas soon as reasonably practicable, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the a rating of the Preferred Securities and the Debentures by one or more from a nationally recognized statistical rating agencies, (viorganization as described in Rule 436(g)(2) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will prepare and timely file with the Closing Date, Commission under Rule 424(b) under the Company will deliver to Act a Prospectus containing information previously omitted at the Representatives a copy time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(dc) During The Offerors will cooperate with the Underwriters and the Underwriters' counsel in order to qualify the Capital Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Capital Securities (or obtain exemptions from the application of such laws), provided that neither Offeror shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if for any other reason it shall be necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will prepare and file with the Commission an appropriate amendment to the activities Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not 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 Underwriters (in which case circumstances when it is so delivered, not misleading, or so that the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(ef) The Company will, on behalf of the Trust, Offerors will make generally available to the Trust's their security holders, as soon as practicableit is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, thereunder and will otherwise cooperate advise the Underwriters in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of writing when such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomestatement has been so made available.
(g) The Company will, except for three years from the Closing Date, deliver to each Underwriter, as herein providedsoon as they are available, pay copies of its annual report and copies of all feesother documents, expenses reports and taxes incident information furnished by the Company to its security holders or filed with any securities exchange pursuant to the performance requirements of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) such exchange or with the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities Commission pursuant to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (Act or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting AgreementAct. The Company shall will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in any event be liable to the Underwriters for damages on account of loss of anticipated profitsCompany's financial statements.
(h) Each The Offerors will apply the net proceeds from the sale of the Offerors will not offer, sell, contract to sell or otherwise dispose Junior Subordinated Debentures and the Capital Securities substantially in accordance with the purposes set forth under "Use of any Preferred Securities, any other beneficial interests Proceeds" in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
13 (i) The Offerors will use their best efforts to cause maintain the Preferred designation of the Capital Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActNasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. Each of the (a) The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(ai) Not later than the Closing Date, the Company The Offerors will deliver use its best efforts to the Representatives a copy of cause the Registration Statement to become effective and will not, either before or after effectiveness, file any amendment thereto or supplement to the Prospectus (including a Prospectus filed pursuant to Rule 424(b) which differs from the Prospectus on file at the time the Registration Statement becomes effective) of which the Representatives shall not previously have been advised and furnished with a copy or to which the Representatives shall have reasonably objected in writing or which is not in compliance with the form that it became effective Act or a conformed copy thereof, certified by an officer of the Company to be in such formRules.
(bii) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives promptly of any request of the Commission or other securities regulatory agency ("Other Securities Regulator") for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus or of the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(diii) During The Offerors will cooperate with the Representatives in endeavoring to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions (including foreign jurisdictions) as the Underwriters Representatives reasonably may have designated in writing, and will make such applications, file such documents and furnish such information as may be reasonably required for that purpose; provided however, the Offerors shall not be required to qualify as -------- ------- a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports, and other documents, as are or may be required to continue such qualifications in effect for so long a period as the Representatives may reasonably request for distribution of the Preferred Securities.
(iv) The Offerors will deliver to, or upon the order of, the Representatives, from time to time, as many copies of any preliminary prospectus as the Representatives may reasonably request. The Offerors will deliver to, or upon the order of, the Representatives on the Effective Date and thereafter from time to time during the period when delivery of a Prospectus is required under the Act as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Representatives may reasonably request. The Offerors will deliver to the Representatives at or before the Closing Date, one signed copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Representatives such number of copies of the Registration Statement, and of all amendments thereto, as the Representatives may reasonably request.
(v) If during the period in which a Prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effective, if be delivered by an Underwriter or dealer any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which as a result of which, in the judgment of the Offerors or in the opinion of counsel for the Company should be set forth in a supplement or amendment to Underwriters, with the Prospectus in order to make the Prospectus not misleading in the light concurrence of the circumstances when Offerors and its counsel, it is delivered becomes necessary to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or, if it is necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will notify the Representatives and, subject to the activities Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in light of the Underwriters (in which case circumstances when it is so delivered, be misleading, or so that the Underwriters shall assume Prospectus will comply with the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(evi) The Company will, on behalf of the Trust, Offerors will make generally available to their security holders in the Trust's security holdersmanner contemplated by Rule 158(b) under the Act, as soon as practicableit is practicable to do so, an earning but in any event not later than the forty-fifth day after the fiscal quarter first occurring one year after the Effective Date, a consolidated earnings statement of the Offerors (which need not be audited) in reasonable detail covering a period of at least twelve consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActEffective Date, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Actwill advise you in writing when such Statement has been so made available.
(fvii) At any time within six months The Offerors will, for a period of five years from the date hereofClosing Date, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as deliver to the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service copies of process under the laws of any jurisdiction, or to meet any other requirements deemed annual reports and information furnished by the Offerors to be unduly burdensometheir stockholders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act, as amended. The Offerors will deliver to the Representatives similar reports with respect to any significant subsidiaries, as that term is defined in the Rules, which are not consolidated in the Offerors's financial statements.
(gviii) The Company willAs soon as the Offerors are advised thereof, except as herein providedthey will advise the Representatives, pay all feesand confirm the advice in writing, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of that the Registration Statement and any post-effective amendment thereto, amendments shall have become effective.
(iiix) The Offerors will use the printing, issuance and delivery net proceeds from the sale of the certificates Preferred Securities in the manner forth in the Prospectus under the caption "Use of Proceeds."
(x) Other than as permitted by the Act and the Rules, the Offerors will not distribute any prospectus or offering materials in connection with the offering and sale of the Preferred Securities.
(xi) The Offerors will maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Offerors, a registrar for the Preferred Securities and will use their best efforts to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities establish and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) maintain the listing of the Preferred Securities (and, if applicablesubject to distribution thereof, the Debentures Subordinated Debentures) on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profitsNasdaq National Market.
(hxii) Each of Except as contemplated hereby or by the Prospectus, the Offerors will not offernot, for a period of 90 days after the Effective Date of the Registration Statement, offer to sell, contract to sell, sell or otherwise dispose of any shares of the Preferred SecuritiesSecurities or securities convertible into shares of the Preferred Securities without your prior written consent. Furthermore, any other beneficial interests the Offerors will cause each executive officer and director of the Offerors (as set forth in the assets Prospectus) to furnish to you, on or prior to the execution of the Trustthis Underwriting Agreement, a letter or letters, in form and substance satisfactory to counsel for Underwriters, pursuant to which each such person shall agree not to offer for sale, sell, distribute or otherwise dispose of any shares of preferred securities or any other securities of the Trust or Offerors during the Company that are substantially similar to 90 days following the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the CompanyEffective Date, except for the Trust Securities and the Guaranteewith your written consent; provided however, without the consent that nothing herein shall prevent such persons from transferring or assigning their shares of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities pursuant to be duly authorized for listing on a bona fide gift or pledge transaction. The foregoing covenants and agreements shall apply to any successor of the NYSEOfferors, subject to notice of issuanceincluding without limitation, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on any entity into which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActOfferors might convert or merge.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Company and the Closing Date, Administrative Trustees on behalf of the Company Trust will deliver to prepare and timely file with the Representatives Commission under Rule 424(b) under the Act a copy Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company If the Offerors elect to rely on Rule 434 of the Act, the Offerors will deliver prepare a term sheet that complies with the requirements of Rule 434. If the Offerors elect not to rely on Rule 434, the Offerors will provide the Underwriters as many with copies of the Prospectus (and any amendments or supplements thereto) form of prospectus, in such numbers as the Underwriters may reasonably request, and file with the Commission such prospectus in accordance with Rule 424(b) of the Act by the close of business in New York City on the second business day immediately succeeding the date of pricing of the offering of the Preferred Securities (the "PRICING DATE"). If the Offerors elect to rely on Rule 434, the Offerors will provide the Underwriters with copies of the form of Rule 434 Prospectus, in such numbers as the Underwriters may reasonably request, by the close of business in New York on the business day immediately succeeding the Pricing Date.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(d) During The Offerors will cooperate with you and your counsel in order to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are required may reasonably have designated and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws). The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by law to deliver the Underwriters for that purpose.
(e) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus after this Underwriting Agreement has become effectiveis required under the Act, if the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date or the Option Closing Date, as the case may be, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, together with the Incorporated Documents, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, together with the Incorporated Documents, as the Underwriters may reasonably request.
(f) If at any time when a prospectus relating to the Preferred Securities is required to be delivered under the Act any event relating to or affecting the Company or the Trust, or occurs as a result of which the Company Prospectus, including any amendments or the Trust shall be advised by the Representatives in writingsupplements, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact fact, or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaserunder which they were made, not misleading. Unless such event relates solely , or if it is necessary at any time to amend the activities Prospectus, including any amendments or supplements thereto and including any revised prospectus which the Offerors propose for use by the Underwriters in connection with the offering of the Underwriters (in Preferred Securities which case differs from the Underwriters shall assume prospectus on file with the expense of preparing any such amendment or supplement), the expenses of complying with this Section 6(d) shall be borne by the Company until the expiration of nine months from Commission at the time of effectiveness of this Underwriting Agreementthe Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with the Act, the Offerors promptly will advise you thereof and will promptly prepare and file with the Commission an amendment or supplement which will correct such expenses shall statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to deliver a prospectus nine months or more after the effective date of the Registration Statement, the Offerors upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be borne by necessary to permit compliance with the Underwriters thereafterrequirements of Section 10(a)(3) of the Act.
(eg) The Not later than September 30, 2004, the Company will, on behalf of the Trust, will make generally available to the Trust's its security holders, as soon as practicable, holders an earning earnings statement (which need not be audited) covering a period of at least twelve 12 months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each During the period of the Offerors will not offerfive years hereafter, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of will furnish you with a copy (i) thirty (30) days as soon as practicable after the Closing Date and filing thereof, of each report filed by the Company with the Commission, any securities exchange or the NASD; (ii) as soon as practicable after the date release thereof, of each material press release in respect of the termination Company; and (iii) as soon as available, of each report of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree Company mailed to notify the Offerors of such termination if it occurs prior to the Closing Datestockholders.
(i) The Offerors will use their best efforts to cause the net proceeds received by it from the sale of the Preferred Securities to be duly authorized for listing in the manner specified in the Prospectus.
(j) If, at the time of effectiveness of the Registration Statement, any information shall have been omitted therefrom in reliance upon Rule 430A and/or Rule 434, then on the NYSEPricing Date, subject to notice of issuancethe Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A, Rule 424(b) and/or Rule 434, copies of an amended Prospectus, or, if required by such Rule 430A and/or Rule 434, a post-effective amendment to be registered under the Registration Statement (including an amended Prospectus), containing all information so omitted. If required, the Offerors will prepare and file, or transmit for filing, a Rule 462(b) Registration Statement not later than the date of the execution of the Pricing Agreement. If a Rule 462(b) Registration Statement is filed, the Offerors shall make payment of, or arrange for payment of, the additional registration fee owing to the Commission required by Rule 111.
(k) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, Act and to have the Debentures registered under the Exchange ActThe Nasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. Each of the Offerors jointly and ------------------------- severally covenants and agrees with the several Underwriters thateach Underwriter as follows:
(a) Not later than The Offerors will use their best efforts to cause the Closing DateRegistration Statement to become effective as and when requested by the Underwriter, and if the Company Offerors elects to rely upon Rule 430A and subject to Section 3(b), will deliver comply with the requirements of Rule 430A and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Representatives a copy Registration Statement, shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement in or of any order preventing or suspending the form that it became effective use of any preliminary prospectus, or a conformed copy thereof, certified by an officer of the Company suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of or the initiation or threatening of any proceedings for any of such purposes. The Offerors will make every reasonable effort to be in such formprevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest reasonable moment.
(b) The Company Offerors will deliver give the Underwriter notice of their intention to file or prepare any amendment to the Underwriters as many copies of Registration Statement (including any post- effective amendment) or any amendment or supplement to the Prospectus (and including any amendments revised prospectus which the Offerors propose for use by the Underwriter in connection with the offering of the Securities which differs from the Prospectus on file at the Commission at the time the Registration Statement first becomes effective, whether or supplements theretonot such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the Underwriters case may reasonably requestbe, and will not file any such amendment or supplement or use any such prospectus to which the Underwriter or counsel for the Underwriter shall object.
(c) The Company Offerors have furnished or will cause deliver to the Prospectus to be filed withUnderwriter and counsel for the Underwriter, or transmitted for filing towithout charge, the Commission pursuant to and in compliance with Rule 424(b) and will advise the Representatives promptly copies of the issuance of any stop order under the Securities Act with respect to the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) and copies of all consents and the institution certificate of any proceedings therefor of which either experts, and will also deliver to the Underwriter a conformed copy of the Offerors shall have received notice. Each Registration Statement as originally filed and of each amendment thereto (without exhibits) for the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issuedUnderwriter.
(d) During The Offerors will deliver to the Underwriter, without charge, from time to time until the effective date of the Registration Statement (or, if the Offerors have elected to rely upon Rule 430A, until such period time the Pricing Agreement is executed and delivered), as many copies of time each preliminary prospectus as the Underwriters are Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will furnish to the Underwriter, without charge, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the Securities Reorganization Act of 1934 (the "1934 Act"), such number -------- of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by law to deliver a prospectus after this Underwriting Agreement has become effective, if the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If any event relating to shall occur or affecting the Company or the Trust, or condition shall exist as a result of which the Company or the Trust shall be advised by the Representatives in writingit is necessary, shall occur which in the opinion of counsel for the Company should be set forth in a supplement Underwriter or amendment for the Company, to amend the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will Registration Statement or amend or supplement the Prospectus so that, as supplemented or amended, it in order that the Prospectus will not contain include any untrue statement statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely counsel, at any such time to amend the activities Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Underwriters (in which case 1933 Act or the Underwriters shall assume 1933 Act Regulations, the expense of preparing any Offerors will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement), supplement as may be necessary to correct such statement or omission or to make the expenses of complying Registration Statement or the Prospectus comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreementsuch requirements, and the Offerors will furnish to the Underwriter such expenses shall be borne by number of copies of such amendment or supplement as the Underwriters thereafterUnderwriter may reasonably request.
(ef) If, at the time that the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then immediately following the execution of the Pricing Agreement, the Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted and will use its best efforts to cause such post-effective amendment to be declared effective as promptly as practicable.
(g) The Offerors will use their best efforts, in cooperation with the Underwriter, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation or trust or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified, the Offerors will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for as long as may be required for the distribution of the Securities or, in the case of such Junior Subordinated Debentures, for as long as such Junior Subordinated Debentures are issuable as contemplated by the Prospectus or, in the case of shares of Common Stock issuable upon conversion of Securities and Junior Subordinated Debentures, for so long as is required by applicable law. The Offerors will promptly advise the Underwriter of the receipt by either of the Offerors of any notification with respect to the suspension of the qualification of the Registered Securities for sale or issuance, as the case may be, in any such state or jurisdiction or the initiating or threatening of any proceedings for such purpose.
(h) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earning earnings statement (which need not be auditedin form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a twelve month period beginning not later than the first day of at least twelve months beginning after the Company's fiscal quarter next following the "effective date of the registration statementdate" within the meaning of (as defined in said Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a158) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, and will otherwise cooperate in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each of the Offerors will not offer, sell, contract to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts the net proceeds received by it from the sale of the Securities and the Junior Subordinated Debentures in the manner specified in the Prospectus under "Use of Proceeds".
(j) During a period of 90 days from the date of the Pricing Agreement (the "Lock-Up Period"), neither the Offerors nor the Bank will, without the prior -------------- written consent of the Underwriter (which may be withheld in its sole discretion), directly or indirectly, (i) sell, pledge, hypothecate, offer to cause sell, pledge or hypothecate, grant any option for the Preferred sale of, or otherwise dispose of, including without limitation a disposition or transfer into nominee or street name (all such forms of disposition or transfer enumerated in this sentence collectively, a "Disposition"), (A) any trust certificate or other ----------- securities of the Trust (other than the Securities and the Common Securities issued to the Company), (B) any preferred stock or any other security of the Company that is substantially similar to the Securities, (C) any shares of any class of common stock of the Company (other than (i) shares of Common Stock issuable upon conversion of the Securities or pursuant to the exercise of options or warrants outstanding on the date hereof and (ii) the grant of stock options or other stock-based awards (and the exercise thereof) to directors, officers and employees of the Company and its Subsidiaries), (D) any debt securities of the Company that are substantially similar to the Junior Subordinated Debentures (other than the Junior Subordinated Debentures issued to the Trust) or (E) any other securities which are convertible into, or exercisable or exchangeable for, any securities of the type referred to in clauses (A) through (D) above (subject, however, to the same exceptions, to the extent applicable, as are set forth in clauses (A) through (D) above) or (ii) enter into any swap or any other agreement or any transaction the transfers, directly or indirectly, the economic consequences of ownership of any of the securities described in clauses (A) through (D) above whether or not such swap is to be duly authorized for listing on settled by delivery of such securities, in cash or otherwise. The Offerors consent to the NYSEentry by the Underwriter of stop-transfer orders with the Offeror's transfer agent if, subject in the Underwriter's sole discretion, a stop order is necessary to notice prevent violation of issuancethis subparagraph. The foregoing restrictions are expressly agreed to preclude the Offerors and the Bank from engaging in any hedging, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange pledge or other organization transaction which is designed to or reasonably expected to lead to or result in a Disposition of Registered Securities or any securities convertible into or exchangeable or exercisable for Registered Securities during the Lock-Up Period even if such securities would be disposed of by someone other than the Offerors or the Bank. Such prohibited hedging, pledge or other transactions would include without limitation any short sale (whether or not against the box), any pledge of shares covering an obligation that matures, or could reasonably mature during the Lock-Up Period, or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any Registered Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from the Securities.
(k) The Offerors will file with the Commission such reports on which Form SR as may be required pursuant to Rule 463 of the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act1933 Act Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Life Financial Capital Trust)
Covenants of the Offerors. Each of the Offerors jointly and severally covenants and agrees with the several Underwriters that:each Underwriter as follows: -------------------------
(a) Not later than The Offerors, on or prior to the Closing Date, the Company will deliver to the Representatives a copy of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer of the Company to be in such form.
(b) The Company will deliver to the Underwriters as many conformed copies of the Prospectus Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in each case including all exhibits filed therewith, and any amendments including unsigned copies of each consent and certificate included therein or supplements filed as an exhibit thereto) , except exhibits incorporated by reference, unless specifically requested). As soon as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed withis advised thereof, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and it will advise the Representatives promptly Representative orally of the issuance of any stop order under the Securities 1933 Act with respect to the Registration Statement Statement, or the institution of any proceedings therefor therefor, of which either of the Offerors Company shall have received notice. Each of the Offerors , and will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof thereof, if issued. The Offerors will deliver to the Underwriters sufficient conformed copies of the Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented Prospectus as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act.
(db) During The Offerors will furnish the Underwriters with copiex xx xxxh amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of the Preferred Securities in such period of time quantities as the Underwriters are may from time to time reasonably request. If, during the period (not exceeding nine months) when the delivery of a prospectus shall be required by law to deliver a prospectus after this Underwriting Agreement has become effectivein connection with the sale of any Preferred Securities by an Underwriter or dealer, if any event relating to or affecting the Company or the TrustCompany, or of which the Company or the Trust shall be advised in writing by the Representatives in writingUnderwriters, shall occur occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment to of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as the case may be, in order to make the Preliminary Supplemented Prospectus or Final Supplemented Prospectus not misleading in the light of the circumstances when it is delivered delivered, or if for any other reason it shall be necessary during such period to a purchaser of the Preferred Securities, the Company will amend or supplement the Preliminary Supplemented Prospectus or Final Supplemented Prospectus or to file under the 1934 Act any document incorporated by reference in the Preliminary Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to suspend solicitation of purchases of the Preferred Securities and (ii) at its expense, make any such filing or prepare and furnish to the Underwriters a reasonable number of copies of a supplement or supplements or an amendment or amendments to the Preliminary Supplemented Prospectus or Final Supplemented Prospectus which will supplement or amend the Preliminary Supplemented Prospectus or Final Supplemented Prospectus so that, as supplemented or amended, it will not contain any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered to a purchaserdelivered, not misleadingmisleading or which will effect any other necessary compliance. Unless such event relates solely In case any Underwriter is required to deliver a prospectus in connection with the activities sale of any Preferred Securities after the expiration of the Underwriters (period specified in which case the Underwriters shall assume preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of preparing any such amendment Underwriter, a reasonable quantity of a supplemented or supplement)amended prospectus, or supplements or amendments to the Final Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the expenses of complying Company will continue to prepare and file with this Section 6(d) shall be borne by the Commission on a timely basis all documents or amendments required under the 1934 Act and the rules and regulations thereunder; provided, that the Company until shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the expiration of nine months from the time of effectiveness of this Underwriting Agreement, Representative and such expenses shall be borne by the Underwriters thereafterDewey Ballantine LLP.
(ec) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully requiredendeavor, and will otherwise cooperate in qualifying cooxxxxxxxx xxxx xxx Xxxerwriters, to qualify the Preferred Securities and, to the extent required or advisable, the Guarantee and the Debentures Junior Subordinated Notes, for offer offering and sale, sale under the blue sky applicable securities laws of such states and the other jurisdictions of the United States as the Representatives Representative may reasonably designate; provided, provided however, that neither of the Offerors shall not be required obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or dealer in securities, to file any consents a consent to service of process under the laws of any jurisdiction, or to meet file annual reports or to comply with any other requirements in connection with such qualification deemed by the Offerors Company to be unduly burdensome.
(gd) The Company will, except will make generally available to its security holders as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, soon as practicable but not limited to, (i) later than 45 days after the preparation and filing close of the Registration Statement and any post-effective amendment theretoperiod covered thereby, (ii) the printing, issuance and delivery an earning statement of the certificates for Company (in form complying with the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification provisions of Rule 158 of the Preferred Securities rules and the Debentures regulations under the blue sky laws 1933 Act) covering a twelve-month period beginning not later txxx xxx first day of various jurisdictions, the Company's fiscal quarter next following the "effective date" (as defined in an amount not to exceed $6,000, (ivRule 158) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, .
(e) As soon as practicable after the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) date of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offeringAgreement, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable within the time prescribed by Rule 424 under the 1933 Act, to file the Underwriters for damages on account of loss of anticipated profits.
(h) Each of Final Supplemented Prospectus with the Offerors will not offer, sell, contract Commission and to sell or otherwise dispose of any Preferred Securities, any other beneficial interests in advise the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee Representative of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing Date.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, filing and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Actconfirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants covenant and agrees agree with the several Underwriters that:
(a) Not later than The Offerors will prepare and timely file with the Closing Date, Commission under Rule 424(b) under the Company will deliver to Act a Prospectus containing information previously omitted at the Representatives a copy time of effectiveness of the Registration Statement in reliance on Rule 430A under the form that it became effective Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been advised and furnished with a conformed copy thereof, certified by an officer of and as to which the Company to be Underwriters shall have reasonably objected in such formwriting promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) The Company will deliver to the Underwriters as many copies of the Prospectus (and any amendments or supplements thereto) as the Underwriters may reasonably request.
(c) The Company will cause the Prospectus to be filed with, or transmitted for filing to, the Commission pursuant to and in compliance with Rule 424(b) and Offerors will advise the Representatives Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, or of the issuance by the Commission of any stop order under suspending the Securities Act with respect to effectiveness of the Registration Statement or the use of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings therefor of which either of the Offerors shall have received notice. Each of for that purpose, and the Offerors will use its their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to secure obtain as soon as possible the prompt removal thereof lifting thereof, if issued.
(dc) During The Offerors will cooperate with you and your counsel in order to qualify the Preferred Securities for sale under the securities laws of such period of time jurisdictions as the Underwriters are may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), provided that neither Offeror shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request and, during the period when delivery of a prospectus is required under the Act, the Offerors will furnish the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two signed copies of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to deliver a prospectus after this Underwriting Agreement has become effectivebe delivered by an Underwriter or dealer, if any event relating to or affecting the Company or the Trust, or shall occur as a result of which the Company Prospectus as then amended or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain any would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when existing at the time the Prospectus is delivered to a purchaser, not misleading. Unless such event relates solely , or if for any other reason it shall be necessary at any time to amend or supplement the Prospectus to comply with any law, the Offerors promptly will prepare and file with the Commission an appropriate amendment to the activities Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not 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 Underwriters (in which case circumstances when it is so delivered, not misleading, or so that the Underwriters shall assume the expense of preparing any such amendment or supplement), the expenses of complying Prospectus will comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafterlaw.
(ef) The Company will, on behalf of the Trust, Offerors will make generally available to the Trust's their security holders, as soon as practicableit is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earning earnings statement (which need not be audited) in reasonable detail, covering a period of at least twelve 12 consecutive months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities ActRegistration Statement, which earning earnings statement shall be in such form, and be made generally available to security holders in such a manner, as to meet satisfy the requirements of the last paragraph of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) At any time within six months of the date hereof, the Offerors will furnish such proper information as may be lawfully required, thereunder and will otherwise cooperate advise you in qualifying the Preferred Securities and the Debentures for offer and sale, under the blue sky laws of writing when such jurisdictions as the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as a foreign corporation or dealer in securities, to file any consents to service of process under the laws of any jurisdiction, or to meet any other requirements deemed by the Offerors to be unduly burdensomestatement has been so made available.
(g) The Company will, except for five years from the First Closing Date, deliver to each Underwriter, as herein providedsoon as they are available, pay copies of its annual report and copies of all feesother documents, expenses reports and taxes incident information furnished by the Company to its security holders or filed with any securities exchange pursuant to the performance requirements of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) such exchange or with the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities Commission pursuant to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, the preliminary (Act or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting AgreementAct. The Company shall will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in any event be liable to the Underwriters for damages on account of loss of anticipated profitsCompany's financial statements.
(h) Each The Offerors will apply the net proceeds from the sale of the Offerors will not offer, sell, contract to sell or otherwise dispose Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of any Preferred Securities, any other beneficial interests Proceeds" in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such substantially similar securities of either the Trust or the Company, except for the Trust Securities and the Guarantee, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateProspectus.
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSEcomply with all registration, subject to notice filing and reporting requirements of issuance, and to be registered under the Exchange Act; if Act and the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange ActAmerican Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. Each of the The Offerors jointly and severally covenants and agrees covenant with the several Underwriters thateach ------------------------- Underwriter as follows:
(a) Not The Company will use its best efforts to cause the Registration Statement and any post-effective amendments to the Registration Statement to be declared effective by the Commission (as and when specified in the reasonable request of the Representatives) and will prepare the Prospectus in a form reasonably approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under the 1933 Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the 1933 Act. The Company will make no further amendment or any supplement to the Registration Statement or the Prospectus prior to any First Closing DateDate which shall be reasonably disapproved by the Representatives after reasonable notice thereof. The Company will notify the Representatives immediately and confirm the notice in writing (i) when the Registration Statement or any post-effective amendment thereto (and any other amendment thereto) has been declared effective by the Commission, (ii) of the transmittal to the Commission for filing of any amendment or supplement to the Prospectus, (iii) of the receipt by the Company will deliver of any comments from the Commission or any state securities commission with respect to the Representatives a copy transactions contemplated by this Agreement, (iv) of any request by the Commission or any state securities commission for any amendment or supplement to the Registration Statement or the Prospectus, or for additional information, (v) of the issuance by the Commissioner or any state securities commission or court of competent jurisdiction of any order suspending either the Offering or the use of either the Preliminary Prospectus or the Prospectus or of the threat of any such action by any such entity, (vi) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement in the form that it became effective or a conformed copy thereof, certified by an officer any amendment thereto or of the receipt by the Company of any notification with respect to be the suspension of the registration, qualification or exemption of the Preferred Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceeding for such formpurpose. In the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such registration, qualification or exemption, the Company promptly will use its best efforts to obtain its withdrawal.
(b) The Company will deliver give the Representatives notice of its intention to file or prepare any amendment or supplement to the Underwriters as many copies of Registration Statement or any amendment or supplement to the Prospectus (whether, in the case of the Registration Statement and any amendments the Prospectus, by the filing of documents pursuant to the 1934 Act, the 1933 Act or supplements thereto) as otherwise and, in the Underwriters may reasonably requestcase of the Prospectus, by amending or supplementing the Prospectus then being used by the Underwriters).
(c) The Company has furnished or will cause deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, from time to time during the period when the Prospectus is required to be filed withdelivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or transmitted supplemented) as such Underwriter may reasonably request for filing to, the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission pursuant thereunder.
(e) If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to and in compliance with Rule 424(b) and will advise the Representatives promptly of the issuance of any stop order under the Securities Act with respect to amend the Registration Statement or the institution of any proceedings therefor of which either of the Offerors shall have received notice. Each of the Offerors will use its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof if issued.
(d) During such period of time as the Underwriters are required by law to deliver a prospectus after this Underwriting Agreement has become effective, if any event relating to or affecting the Company or the Trust, or of which the Company or the Trust shall be advised by the Representatives in writing, shall occur which in the opinion of the Company should be set forth in a supplement or amendment to the Prospectus in order to make that the Prospectus not misleading in the light of the circumstances when it is delivered to a purchaser of the Preferred Securities, the Company will amend or supplement the Prospectus so that, as supplemented or amended, it will not contain include any untrue statement statements of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances when existing at the Prospectus time it is delivered to a purchaser, not misleading. Unless or if it shall be necessary, in the opinion of such event relates solely to the activities of the Underwriters (in which case the Underwriters shall assume the expense of preparing counsel, at any such amendment time to amend the Registration Statement or supplement), the expenses of complying Prospectus in order to comply with this Section 6(d) shall be borne by the Company until the expiration of nine months from the time of effectiveness of this Underwriting Agreement, and such expenses shall be borne by the Underwriters thereafter.
(e) The Company will, on behalf of the Trust, make generally available to the Trust's security holders, as soon as practicable, an earning statement (which need not be audited) covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the Securities Act, which earning statement shall be in such form, and be made generally available to security holders in such a manner, as to meet the requirements of the last paragraph 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of Section 11(a) copies of such amendment or supplement as the Securities Act and Rule 158 under the Securities ActUnderwriters may reasonably request.
(f) At If, at the time that the Registration Statement or a post-effective amendment thereto becomes effective, any time within six months information shall have been omitted therefrom in reliance upon Rule 430A of the date hereof1933 Act Regulations, then immediately following effectiveness, the Offerors Company will furnish such proper information as may be lawfully requiredprepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted and will otherwise cooperate use its best efforts to cause any such post-effective amendment to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in qualifying cooperation with the Underwriters, to qualify the Preferred Securities for offering and the Debentures for offer and sale, sale under the blue sky applicable securities laws of such states and other jurisdictions of the United States as the Representatives may reasonably designatedesignate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, provided however, that the Offerors Company shall not be required obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities, securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Preferred Securities have been so qualified the Company will file any consents to service of process under such statements and reports as may be required by the laws of any jurisdiction, or such jurisdiction to meet any other requirements deemed by continue such qualification in effect for a period of not less than one year from the Offerors to be unduly burdensome.
(g) The Company will, except as herein provided, pay all fees, expenses and taxes incident to the performance of each Offeror's obligations under this Underwriting Agreement including, but not limited to, (i) the preparation and filing of the Registration Statement and any post-effective amendment thereto, (ii) the printing, issuance and delivery of the certificates for the Preferred Securities to the Underwriters, (iii) legal counsel relating to the qualification of the Preferred Securities and the Debentures under the blue sky laws of various jurisdictions, in an amount not to exceed $6,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies date of the Registration Statement, the preliminary (or any supplemental) blue sky survey, any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, except as otherwise provided in paragraph (d) of this Section 6, (v) the rating of the Preferred Securities and the Debentures by one or more nationally recognized statistical rating agencies, (vi) filings or other notices (if any) with or to, as the case may be, the National Association of Securities Dealers, Inc. (the "NASD") in connection with its review of the terms of the offering, and (vii) the listing of the Preferred Securities and, if applicable, the Debentures on the New York Stock Exchange (the "NYSE") and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof. Except as provided above, the Company shall not be required to pay any expenses of the Underwriters, except that, if this Underwriting Agreement shall be terminated in accordance with the provisions of Section 7, 8 or 12 hereof, the Company will reimburse the Underwriters for (A) the reasonable fees and expenses of Counsel for the Underwriters, whose fees and expenses the Underwriters agree to pay in any other event, and (B) reasonable out-of-pocket expenses incurred in contemplation of the performance of this Underwriting Agreement. The Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits.
(h) Each The Company will make generally available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(i) The Offerors will not offercooperate with the Underwriters and use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(j) The Trust will use the net proceeds received by it from the sale of the Preferred Securities, and the Company will use the proceeds received by it from the sale of the Subordinated Debentures, in the manners specified in the Prospectus under "Use of Proceeds."
(k) Prior to __________, 1998, neither the Trust nor the Company will, without the prior written consent of X.X. Xxxxxxxx, directly or indirectly, issue, sell, contract offer or agree to sell sell, grant any option for the sale of, or otherwise dispose of any Preferred Securitiesof, any other beneficial interests in the assets of the Trust, or any preferred securities or any other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities, security convertible into exchangeable or exercisable for Preferred Securities or any securities convertible into or exchangeable for or that represent the right to receive securities, preferred securities or any such equity security substantially similar securities of either to the Trust or the Company, Preferred Securities (except for the Trust Securities and issued pursuant to this Agreement or with the Guarantee, without the prior written consent of the Representatives until the earlier to occur of (i) thirty (30) days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Preferred Securities, as determined by the Underwriters. The Representatives agree to notify the Offerors of such termination if it occurs prior to the Closing DateX.X. Xxxxxxxx).
(i) The Offerors will use their best efforts to cause the Preferred Securities to be duly authorized for listing on the NYSE, subject to notice of issuance, and to be registered under the Exchange Act; if the Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred Securities were then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract