Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that: (a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued. (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 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 be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law. (f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available. (g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements. (h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus. (i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 2 contracts
Samples: Underwriting Agreement (Spectrum Capital Trust Ii), Underwriting Agreement (Spectrum Capital Trust I)
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company Offerors will timely file the Prospectus and any preliminary prospectus supplement used in connection with the Administrative Trustees on behalf offering of the Trust will prepare and timely file Securities with the Commission under pursuant to Rule 424(b) 424. The Offerors have complied and will comply with Rule 433 under the Securities Act a Prospectus containing information previously omitted at in connection with the time of effectiveness offering and sale of the Registration Statement Preferred Trust Securities, including applicable provisions in reliance on Rule 430A under the Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus respect 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 timely filing with the Act or the rules Commission, legending and regulations thereunderrecord-keeping.
(b) The Offerors will advise the Underwriters promptly of any request prepare a final term sheet, containing a description of the Commission for amendment pricing terms of the Registration Statement or for supplement to Offered Securities, substantially in the Prospectus or for any additional information, or form of the issuance Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission of any stop order suspending pursuant to Rule 433 under the 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 for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issuedAct.
(c) The Offerors FPL Group will cooperate with you deliver or cause to be delivered to the Representatives and your counsel in order to qualify the Preferred Securities Counsel for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to continue such qualifications in effect for so long 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 may reasonably request for distribution of through 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 Representatives as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters mayRepresentatives may reasonably request for the purposes contemplated by the Securities Act.
(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, from time 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 time, reasonably request. The Offerors will deliver to the Representatives for the account of the Underwriters, at or before the Closing Datein reasonable quantities, 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 exhibitsany 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 of all amendments thereto, as FPL Group [(1)and/or FPL Group Capital] shall reimburse or cause to be reimbursed the Underwriters may for out-of-pocket expenses, reasonably requestincurred 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) IfDuring a period of nine months after the date of this agreement, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, if any event relating to or affecting any of the Offerors shall occur as which, in the opinion of FPL Group [(1)or FPL Group Capital], should be set forth in a result supplement to or an amendment of which the Prospectus as then amended or supplemented would include (including an untrue statement of a material fact or omit to state any material fact necessary Issuer Free Writing Prospectus) in order to make the statements therein, Prospectus not misleading in the light of the circumstances existing at the time the Prospectus when it is delivered to a purchaser, not misleadingFPL Group [(1)or FPL Group Capital] will forthwith at its expense prepare, 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 Commission, if required, and furnish to the Registration Statement Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement to or amend the Prospectus so that the Prospectus as so supplemented or amended or supplemented it will not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein contained therein, in the light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or so that supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date of this agreement, FPL Group [(1)or FPL Group Capital] upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus will comply complying with lawSection 10 of the Securities Act.
(f) The Offerors will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Preferred Trust Securities, the Trust Guarantee, and to the extent required or advisable, the other Offered Securities, for offer and sale under the blue sky laws of such United States jurisdictions as the Representatives may designate 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 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 other requirements deemed by any Offeror to be unduly burdensome.
(g) FPL Group will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited, unless required so to be under Section 11(a) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration StatementSecurities Act) for the purposes of, which earnings statement shall satisfy and to provide the requirements benefits contemplated by, the last paragraph of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Securities Act. The Company 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 the Company's financial statements.
(h) Prior to the termination of the offering of the Preferred Trust Securities, the Offerors will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton & Xxxxxxxx LLP, who are acting as counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters. The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and have not made any offer relating to the Preferred Trust Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Offerors with the Commission or retained by the Offerors under Rule 433 under the Securities Act, other than a pricing term sheet substantially in accordance with the purposes form as set forth under "Use of Proceeds" on Schedule I, and will not make any such offer without prior notice to the Representatives and to Counsel for the Underwriters, or any such offer to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the ProspectusUnderwriters.
(i) The Offerors will advise the Representatives promptly of the filing of the Prospectus pursuant to 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 hereunder, of official notice of the institution of proceedings for, 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 the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 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 registration, filing and reporting requirements applicable securities or blue sky laws of the Exchange Act and various jurisdictions in the American Stock ExchangeUnited States in connection with such distribution. The provisions of this Section [8](h) shall survive the delivery of the Preferred Trust Securities.
Appears in 1 contract
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under 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 ActCompany is advised thereof, 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 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 it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of 1933 Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in writing each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus and to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purpose1933 Act or the 1934 Act.
(db) The Offerors will furnish the Underwriters with as many copies copxxx xx xach amendment and supplement to the Final Supplemented Prospectus relating to the offering of any Preliminary Prospectus the Preferred Securities in such quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Preferred Securities by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment 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, or if for any other reason it shall be necessary during such period to 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 then amended supplemented or supplemented would include an amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Preferred Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the 1934 Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawRepresentative and Dewey Ballantine LLP.
(fc) The Offerors will endeavor, in cooperatxxx xxxx xxx Xxxerwriters, to qualify the Preferred Securities and, to the extent required or advisable, the 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 Representative may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the 1933 Act, which are ) covering a twelve-month period beginning not consolidated in later txxx xxx first day of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply use best efforts to effect the net proceeds from listing of the sale Preferred Securities on the New York Stock Exchange; if the Preferred Securities are exchanged for Junior Subordinated Notes, the Company will use its best efforts to effect the listing of the Junior Subordinated Debentures Notes on any exchange on which the Preferred Securities 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 substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectusissued pursuant to this Agreement).
(ig) The As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, the Offerors will comply file the Final Supplemented Prospectus with all registration, the Commission and advise the Representative of such filing and reporting requirements of the Exchange Act and the American Stock Exchangeconfirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters that:each Underwriter as follows: -------------------------
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of 1933 Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing 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 to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purpose1933 Act or the 1934 Act.
(db) The Offerors will furnish the Underwriters with as many copies copiex xx xxxh amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of any Preliminary Prospectus the Preferred Securities in such quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Preferred Securities by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as then amended 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, or if for any other reason it shall be necessary during such period to 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 would include an or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Preferred Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the 1934 Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawRepresentative and Dewey Ballantine LLP.
(fc) The Offerors will endeavor, in cooxxxxxxxx xxxx xxx Xxxerwriters, to qualify the Preferred Securities and, to the extent required or advisable, the 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 Representative may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the 1933 Act, which are ) covering a twelve-month period beginning not consolidated in later txxx xxx first day of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply As soon as practicable after the net proceeds from date of this Agreement, and in any event within the sale of time prescribed by Rule 424 under the Junior Subordinated Debentures and 1933 Act, to file the Preferred Securities substantially in accordance Final Supplemented Prospectus with the purposes set forth under "Use Commission and to advise the Representative of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, such filing and reporting requirements of the Exchange Act and the American Stock Exchangeto confirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(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 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 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 be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holdersthe holders of Preferred Securities, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Samples: Underwriting Agreement (Front Range Capital Trust I)
Covenants of the Offerors. The Each of the Offerors jointly covenants and severally covenant and agree with the several Underwriters agrees that:
(a) The Company it will do all such acts and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Actthings as are necessary or desirable, and will not file any amendment reasonably cooperate with BPO, in order to give effect to the Registration Statement Arrangement and, without limiting the foregoing, it will apply for and use its reasonable efforts to obtain such consents, orders or supplement approvals as are necessary or desirable for the implementation of the Arrangement and will cooperate with and assist BPO in seeking the Interim Order and the Final Order, including by providing to the Prospectus of which the Underwriters shall not previously have been advised and furnished with BPO, on a copy and as timely basis, any information reasonably required to which the Underwriters shall have reasonably objected be supplied by such Offeror in writing promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.connection therewith;
(b) The Offerors it will advise do all such acts and things as are necessary or desirable in order to carry out and effect the Underwriters promptly BOP Split Amalgamation (as defined under the Plan of any request of Arrangement) at the Commission for amendment of appropriate time on the Registration Statement or for supplement Effective Date in order to implement 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.Arrangement;
(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 continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution if requested by BPO within five Business Days of the Shareholders’ Meeting, it will fund BPO on or immediately prior to the Effective Date for each outstanding BPO Voting Preferred Securities (or obtain exemptions from Share to be redeemed by BPO pursuant to the application Plan of such laws), PROVIDED that neither Offeror shall Arrangement and/or for each BPO Common Share to be required purchased for cancellation by BPO pursuant to qualify as a foreign corporation or to file a general consent to service the Plan 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.Arrangement;
(d) The Offerors in the case of Exchange LP, it 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 issue BPO such number of conformed copies Exchange LP Units as are required to be delivered to Canadian Shareholders who have elected, or are deemed to have elected, to have their BPO Common Shares purchased for cancellation by BPO in exchange for Exchange LP Units pursuant to the Plan of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters may reasonably request.Arrangement;
(e) Ifin the case of Brookfield Property Partners, during it will, promptly following the period Effective Date, redeem for cash and/or convert into similar interests in which a prospectus is required by law to be delivered by an Underwriter or dealerBrookfield Property Partners, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements thereinall BPO Options and other share based compensation awards outstanding at BPO, in light of the circumstances existing at manner described in the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.Offer Circular;
(f) The Offerors it will make generally available to their security holders, as soon as vote all BPO Common Shares it is practicable to do so, but holds in any event not later than 18 months after the effective date favour of the Registration StatementArrangement Resolution, an earnings statement (which need not be audited) either in reasonable detailperson or by proxy, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.Shareholders’ Meeting; and
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange pursuant to the requirements of such exchange or with extent within its power, it will forthwith carry out the Commission pursuant to the Act or the Exchange Act. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale terms of the Junior Subordinated Debentures Interim Order and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the ProspectusFinal Order.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Samples: Arrangement Agreement (Brookfield Office Properties Inc)
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters thateach Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any post-effective amendments to the Administrative Trustees on behalf Registration Statement to be declared effective by the Commission (as and when specified in the reasonable request of the Trust Representatives) and will prepare the Prospectus in a form reasonably approved by the Representatives and timely file with the Commission under such Prospectus pursuant to Rule 424(b) under the 1933 Act a Prospectus containing information previously omitted at 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 of effectiveness of the Registration Statement in reliance on as may be required by Rule 430A 430A(a)(3) under the 1933 Act, and . The Company will not file make no further amendment or any amendment supplement to the Registration Statement or supplement to the Prospectus of prior to any First Closing Date which shall be reasonably disapproved by 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 Representatives after reasonable notice thereof or which is not thereof. The Company will notify the Representatives immediately and confirm the notice in compliance with the Act or the rules and regulations thereunder.
writing (bi) The Offerors will advise the Underwriters promptly of any request of the Commission for amendment of 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 Prospectus, (iii) of the receipt by the Company of any comments from the Commission or any state securities commission with respect to the 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 any 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 or the use any amendment thereto or of the Prospectus, receipt by the Company of any notification with respect to the suspension of the registration, qualification or exemption of the Preferred Securities for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings proceeding for that such purpose, and . In the Offerors will use their best efforts to prevent event of the issuance of any such stop order or of any order preventing or suspending the use of the any Preliminary Prospectus or Prospectus or suspending any such registration, qualification and or exemption, the Company promptly will use its best efforts to obtain as soon as possible its withdrawal.
(b) The Company will give the lifting thereofRepresentatives notice of its intention to file or prepare any amendment or supplement to the Registration Statement or any amendment or supplement to the Prospectus (whether, if issuedin the case of the Registration Statement and the Prospectus, by the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise and, in the case of the Prospectus, by amending or supplementing the Prospectus then being used by the Underwriters).
(c) The Offerors Company has furnished or will cooperate with you deliver to the Representatives and your counsel in order to qualify for the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution Underwriters, without charge, signed copies of the Preferred Securities Registration Statement as originally filed and of each amendment thereto (or obtain exemptions from including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the application Representatives a conformed copy of such laws), PROVIDED that neither Offeror shall be required to qualify the Registration Statement as a foreign corporation or to file a general consent to service originally filed and 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 each amendment thereto (without exhibits) for each of the Underwriters for that purposeUnderwriters.
(d) The Offerors Company will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request anddeliver to each Underwriter, 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 maywithout charge, from time to time, reasonably request. The Offerors will deliver to time until 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 effective date of the Registration Statement, without exhibits, and as many copies of all amendments thereto, each Preliminary Prospectus as the Underwriters 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 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 for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, 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 amend the Registration Statement or the Prospectus as then amended or supplemented would in order that the Prospectus will not include an any untrue statement statements of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 not misleading in the light of the circumstances when existing at the time it is so delivered, not misleadingdelivered to a purchaser, or so that if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or the Prospectus will in order to comply with lawthe requirements of the 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 copies of such amendment or supplement as the Underwriters may reasonably request.
(f) If, at the time that the Registration Statement or a post-effective amendment thereto becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then immediately following effectiveness, the Company 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 any such post-effective amendment to be declared effective as promptly as practicable.
(g) The Offerors Company will make generally available use its best efforts, in cooperation with the Underwriters, to their security holders, qualify the Preferred Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as soon as it is practicable the Representatives may designate and to do so, but maintain such qualifications in any event effect for a period of not later less than 18 months after one year from the effective date of the Registration Statement; provided, an earnings statement (which need however, that the Company shall not be audited) obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in reasonable detail, covering 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 such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for a period of at least 12 consecutive months beginning after not less than one year from the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors Company will apply make generally available to its security holders as soon as practicable, but not later than 90 days after the net proceeds from the sale close of the Junior Subordinated Debentures and the Preferred Securities substantially period covered thereby, an earnings statement (in accordance form complying with the purposes set forth under 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 "Use effective date" (as defined in said Rule 158) of Proceeds" in the ProspectusRegistration Statement.
(i) The Offerors will comply cooperate with all registration, filing the Underwriters and reporting requirements 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 Exchange Act Preferred Securities, and the American Stock ExchangeCompany 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, offer or agree to sell, grant any option for the sale of, or otherwise dispose of, any securities that are substantially similar to the Preferred Securities, any security convertible into exchangeable or exercisable for Preferred Securities or any equity security substantially similar to the Preferred Securities (except for the Securities issued pursuant to this Agreement or with the prior written consent of the Representatives).
Appears in 1 contract
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of 1933 Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing 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 to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purpose1933 Act or the 1934 Act.
(db) The Offerors will furnish the Underwriters with as many copies cxxxxx xx each amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of any Preliminary Prospectus the Preferred Securities in such quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Preferred Securities by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as then amended 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, or if for any other reason it shall be necessary during such period to 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 would include an or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Preferred Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the 1934 Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawRepresentative and Dewey Ballantine LLP.
(fc) The Offerors will endeavor, xx xxxxxxxxxxx xxxx xxx Xnderwriters, to qualify the Preferred Securities and, to the extent required or advisable, the 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 Representative may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the 1933 Act, which are ) covering a twelve-month period beginning not consolidated in later xxxx xxe first day of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply the net proceeds 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 of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Junior Subordinated Debentures 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 substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectusissued pursuant to this Agreement).
(if) The Offerors will comply As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Final Supplemented Prospectus with all registration, the Commission and to advise the Representative of such filing and reporting requirements of the Exchange Act and the American Stock Exchangeto confirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters thatas follows:
(a) The Company and Promptly following the Administrative Trustees on behalf execution of this Agreement, the Trust Offerors will prepare and timely file cause the Prospectus to be filed with the Commission under pursuant to Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness 424 of the Registration Statement in reliance on Rule 430A under 1933 Act Regulations and the Act, and Offerors will not file any amendment promptly advise the Underwriters when such filing has been made. Prior to the Registration Statement or supplement filing, the Offerors will cooperate with the Underwriters in the preparation of such Prospectus to assure that the Underwriters have no reasonable objection 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 form or content thereof when filed or which is not in compliance with the Act or the rules and regulations thereundermailed.
(b) The Offerors will advise comply with the requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations if and as applicable, and will notify the Underwriters promptly immediately (i) of the effectiveness of any request of the Commission for post-effective amendment of to the Registration Statement or the 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 any additional information, or (iv) 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening initiation of any proceedings for that purpose and (v) of the 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, and the . The Offerors will use their best make all reasonable efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and and, if any stop order is issued, to promptly obtain as soon as possible the lifting thereof, if issued.
(c) The Offerors will cooperate 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 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 Underwriters with you and your counsel in order copies of any such Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or revision a reasonable amount of time prior to qualify the Preferred Securities for sale under the securities laws of such jurisdictions proposed filing or use, as the Underwriters case may reasonably have designated in writing be; and will not file any such Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or revision to continue such qualifications in effect for so long as which the Underwriters may reasonably request or counsel 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 purposeshall reasonably object.
(d) The Offerors Company will furnish deliver to Xxxxxxx Xxxxx and counsel for the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request andUnderwriters, during the period when delivery of a prospectus is required under the Actwithout charge, the Offerors will furnish the Underwriters with as many conformed copies of the Prospectus in final formRegistration 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, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors 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, at or before the Closing Date, two signed copies of the Registration Statement and all amendments each amendment thereto including all exhibits filed therewith, and will deliver furnished to the Underwriters such number of conformed will be identical to the electronically transmitted copies of thereof filed with the Registration StatementCommission pursuant to XXXXX, without exhibits, and of all amendments thereto, as except to the Underwriters may reasonably request.extent permitted by Regulation S-T.
(e) IfThe 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 which a prospectus 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 be delivered by an Underwriter or dealerin connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the Prospectus as then amended opinion of counsel for the Underwriters or supplemented would include for the Offerors, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, therein not misleading, misleading 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 Registration Statement or supplement to the Prospectus so in order that the Prospectus as so amended or supplemented will not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein not misleading in the light of the circumstances when existing at the time it is so delivered, not misleadingdelivered to a purchaser, or so that if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus will in order to comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and file with the Commission, subject to Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when 3(c), such amendment or supplement as may be necessary to correct such statement has been so made availableor omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Offerors will 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 cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representative may designate; provided, however, that the Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or 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 so long as may be required in connection with distribution of the Securities and the Shares.
(h) 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 prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A or Rule 434 and Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus or 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 1933 Act Regulations by the earlier of (i) 10:00 p.m. Eastern time on the date of the Pricing Agreement and (ii) the time confirmations are sent or given, as specified by Rule 462(b)(2).
(1) 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 Securities to be registered under the 0000 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 five 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; 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 convertible into or exchangeable or exercisable for any 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 First Closing DateTime, deliver the Company will furnish to each Underwriter, as soon as they are available, copies of its annual report and 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 security holders stockholders or filed securityholders generally, provided, however, that the Company shall not be required to provide the Representative with any securities exchange pursuant to the requirements of such exchange reports or similar forms that have been filed with the Commission by electronic transmission pursuant to the Act or the Exchange Act. XXXXX.
(p) The Company will deliver reserve and keep available at all times, free of preemptive or other similar rights and liens and adverse claims, sufficient shares of Common Stock to each Underwriter similar reports satisfy any obligations to issue Shares upon settlement of the Purchase Contracts and shall take all actions necessary to keep effective the Registration Statement with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Act, which are not consolidated in the Company's financial statementsShares.
(hq) The Offerors Neither the Company nor its Significant Subsidiaries will apply take, directly or indirectly, any action resulting in a violation of Regulation M under the net proceeds from 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 Junior Subordinated Debentures and Securities or the Preferred Securities substantially Common Stock, in accordance with the purposes set forth under "Use each case, in violation of Proceeds" in the Prospectusapplicable law.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and Offerors will promptly file the Administrative Trustees on behalf of the Trust will prepare and timely file Prospectus with the Commission under pursuant to Rule 424(b) 424 under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Securities 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 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 FPL Group will advise deliver to the Representatives and to Counsel for the Underwriters promptly of any request of the Commission for amendment one signed copy of the Registration Statement or for supplement to the Prospectus or for any additional informationor, or of the issuance by the Commission of any stop order suspending the effectiveness 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 the use conformed copy of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering each consent and certificate included therein or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain filed as an exhibit thereto. As soon as possible practicable after the lifting thereofdate of this agreement, if issued.
(c) The Offerors FPL Group will cooperate with you and your counsel in order deliver 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 continue such qualifications in effect for so long as through 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 Representatives as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time Representatives may reasonably request for the purposes contemplated by the Securities Act.
(c) FPL Group [/1/Capital] will pay or cause to time, reasonably request. The Offerors will deliver to be paid all expenses in connection with the Underwriters, at or before the Closing Date, two signed copies (i) preparation and filing of the Registration Statement and all amendments thereto including all exhibits filed therewithProspectus, (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 will deliver (iii) printing and delivery to the Underwriters such number Representatives for the account of conformed the Underwriters, in reasonable quantities, of copies of the Registration Statement, without exhibitsthe Prospectus, the FPL Group [/1/Capital] 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 all amendments theretothe Offered Securities. The Offerors shall not, as 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 may agree to pay in any other event and FPL Group [/1/and/or FPL Group Capital] shall reimburse the Underwriters for out-of-pocket expenses reasonably requestincurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000. 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.
(ed) IfDuring a period of nine months after the date of this agreement, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, if any event relating to or affecting any of the Offerors shall occur as which, in the opinion of FPL Group [/1/or FPL Group Capital], should be set forth in a result supplement to or an amendment of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, Prospectus not misleading in the light of the circumstances existing at the time the Prospectus when it is delivered to a purchaser, not misleading, FPL Group will forthwith at its expense prepare and furnish to the Representatives a reasonable number of copies of a supplement or if for any other reason it shall be necessary at any time supplements or an amendment or amendments to amend or supplement the Prospectus to comply with any law, the Offerors promptly which will prepare and file with the Commission an appropriate amendment to the Registration Statement supplement or supplement to amend the Prospectus so that the Prospectus as so supplemented or amended or supplemented it will not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein contained therein, in the light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date of this agreement, FPL Group upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 10 of the Securities Act.
(e) The Offerors will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Preferred Trust Securities, the Trust Guarantee, and to the extent required or advisable, the other Offered Securities, for offer and sale under the blue sky laws of such jurisdictions as the Representatives may designate 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 be required to qualify as a foreign corporation or dealer in securities, or so that to file any consents to service of process under the Prospectus will comply with lawlaws of any jurisdiction, or to meet other requirements deemed by any Offeror to be unduly burdensome.
(f) The Offerors FPL Group will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited, unless required so to be under Section 11(a) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration StatementSecurities Act) for the purposes of, which earnings statement shall satisfy and to provide the requirements benefits contemplated by, the last paragraph of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made availableSecurities Act.
(g) The Company will, for five years from Offerors will advise the First Closing Date, deliver to each Underwriter, as soon as they are available, copies Representatives promptly of its annual report and copies the filing of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange Prospectus pursuant to the requirements Rule 424 and of such exchange any amendment or with the Commission pursuant supplement to the Act Prospectus or Registration Statement or, prior to the termination of the offering of the Offered Securities hereunder, of official notice of the institution of proceedings for, or the Exchange Act. The Company will deliver entry of, a stop order suspending the effectiveness of the Registration Statement and, if such a stop order should be entered, use every commercially reasonable effort to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in obtain the rules and regulations under the Act, which are not consolidated in the Company's financial statementsprompt removal thereof.
(h) The Offerors will apply the net proceeds from the sale If FPL Group [/1/Capital] Subordinated Debentures are distributed to holders of Preferred Trust Securities upon liquidation of the Junior Subordinated Debentures and 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 substantially in accordance with the purposes set forth under "Use of Proceeds" in the ProspectusTrust Securities.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters thateach Underwriter as follows:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors, subject to Section 3(b) hereof, will prepare and timely file comply with the Commission under requirements of Rule 424(b430A or Rule 434, as applicable, and will notify the Representatives immediately, and confirm the notice in writing, (i) under the Act a Prospectus containing information previously omitted at the time of effectiveness of when any post-effective amendment to the Registration Statement in reliance on Rule 430A under shall become effective, or any supplement to the ActProspectus or any amended Prospectus shall have been filed, and will not file (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 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 any amendment or which is not in compliance with the Act or the rules and regulations thereunder.
(b) 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 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 the Prospectusany preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings for that purpose, and the any of such purposes. The Offerors will use their best efforts 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 event that it was not, it will promptly file such prospectus. The Offerors will make every reasonable effort to prevent the issuance of any such stop order preventing and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will give the Representatives notice of its intention to file or suspending prepare any amendment to the 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 any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document without the consent of the Prospectus or suspending such qualification and to obtain as soon as possible the lifting thereofRepresentatives, if issuedwhich consent shall not be unreasonably withheld.
(c) The Offerors have furnished or will cooperate with you deliver to the Representatives and your counsel in order 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 qualify be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Preferred Securities Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for sale under each of the securities laws Underwriters. The copies of such jurisdictions as the Registration Statement and each amendment thereto furnished to the Underwriters may reasonably have designated in writing and will be identical to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of electronically transmitted copies thereof filed with the Preferred Securities (or obtain exemptions from Commission pursuant to XXXXX, except to 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 extent permitted by the Underwriters for that purpose.Regulation S-T.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request andto each Underwriter, without charge, during the period when delivery of a prospectus the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, the Offerors will furnish the Underwriters with as many such number of copies of the Prospectus in final form, or (as thereafter amended or supplemented, ) as the Underwriters may, from time to time, such Underwriter may reasonably request. The Offerors will deliver to the Underwriters, at Prospectus and any amendments or before the Closing Date, two signed copies of the Registration Statement and all amendments supplements thereto including all exhibits filed therewith, and will deliver furnished to the Underwriters such number of conformed will be identical to the electronically transmitted copies of thereof filed with the Registration StatementCommission pursuant to XXXXX, without exhibits, and of all amendments thereto, as except to the Underwriters may reasonably request.extent permitted by Regulation S-T.
(e) IfThe Offerors will comply with the 1933 Act, during the period 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 which this Agreement and in the Prospectus. If at any time when a prospectus is required by law the 1933 Act to be delivered by an Underwriter or dealerin connection with sales of the Capital Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus as then amended or supplemented would in order that the Prospectus will not include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 not misleading in the light of the circumstances when existing at the time it is so delivered, not misleadingdelivered to a purchaser, or so that if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus will in order to comply with lawthe requirements of the 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 copies of such amendment or supplement as the Underwriters may reasonably request.
(f) The Offerors will make generally available use their best efforts, in cooperation with the Underwriters, to their security holders, qualify the Capital Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as soon as it is practicable the Representatives may designate and to do so, but maintain such qualifications in any event effect for a period of not less than one year from the later than 18 months after of the effective date of the Registration Statement and any Rule 462(b) Registration Statement; provided, an earnings statement (which need however, that the Offerors shall not be audited) obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in reasonable detailsecurities 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, covering 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 a period of at least 12 consecutive months beginning after not less than one year from the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(aStatement and any Rule 462(b) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.Registration
Appears in 1 contract
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of Securities Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in writing each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus and to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purposeSecurities Act or the Exchange Act.
(db) The Offerors will furnish the Underwriters with as many copies of any 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 quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Notes by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Representative, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment 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, or if for any other reason it shall be necessary during such period to 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 then amended supplemented or supplemented would include an amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any 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 such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the Securities Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the Exchange Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawRepresentative and Dewey Ballantine LLP.
(fc) The Offerors wilx xxxxxxxx, xx cooperation with the Underwriters, to qualify the Notes and, to the extent required or advisable, the Notes Guarantee, for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Representative may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Securities Act, which are ) covering a twelve-month period beginning not consolidated in later than the first day of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply the net proceeds During a period of 15 days from the date of this Agreement, neither SoCo Capital 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 of, or otherwise dispose of, any Notes, any security convertible into or exchangeable into or exercisable for the Junior Subordinated Debentures Notes or any debt securities substantially similar to the Notes (except for the Notes issued pursuant to this Agreement and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the ProspectusSeries B Floating Rate Senior Notes due February 1, 2004).
(if) The Offerors As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the Securities Act, the Company will comply file the Final Supplemented Prospectus with all registration, the Commission and will advise the Representative of such filing and reporting requirements of the Exchange Act and the American Stock Exchangewill confirm such advice in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Southern Co)
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(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 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 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 be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.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 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 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 be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock ExchangeNasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with each of the several Underwriters that:
(a) a. The Company Offerors shall comply with the provisions of and the Administrative Trustees on behalf of the Trust will prepare and timely file make all requisite filings with the Commission under Rule pursuant to Rules 424(b), 430A and 462(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Act, Rules and Regulations and will not file any amendment to the Registration Statement or supplement to the Prospectus of which notify the Underwriters shall not previously have been advised and furnished with a copy and as to which the Underwriters shall have reasonably objected promptly in writing promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunder.
(b) of all such filings. The Offerors will advise shall notify the Underwriters promptly of any request of by the Commission for any amendment of the Registration Statement or for supplement to the Registration Statement, the Effective Prospectus or the Final Prospectus or for any 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 Underwriters promptly of the issuance by the Commission or any jurisdiction or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement Statement, suspending or preventing the use of the any Preliminary Prospectus, of the suspension of Effective Prospectus or the Final Prospectus or suspending the qualification of the Preferred Designated Capital Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that any such purpose, ; and the Offerors will shall use their best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus other such order and, should a stop order or suspending other such qualification and order be issued, to obtain as soon as possible the lifting thereof, if issued.
(c) b. The Offerors will cooperate with you take or cause to be taken all necessary action and your counsel furnish to whomever the Underwriters direct, such information as may be reasonably required in order to qualify qualifying the Preferred Designated Capital Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters may reasonably have designated in writing designate and to will continue such qualifications in effect for so as long as may be reasonably necessary to complete the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), PROVIDED that neither Offeror 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 now so 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 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 delivered under the Securities Act, the Offerors will furnish shall comply with all requirements imposed upon it by the Underwriters with as many copies of the Prospectus in final form, or as thereafter amended or supplementedSecurities Act, as now and hereafter amended, and by the Underwriters mayRules and Regulations, as from time to timetime in force, reasonably requestso 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. 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 If during 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 be delivered by an Underwriter or dealer, any event shall occur occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserthen existing, not misleading, or if for any other reason during such period it shall be is 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 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 so that (at 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 expense of the circumstances when it is Offerors) so delivered, not misleading, as to correct such statement or so that the Prospectus will comply with lawomission or effect such compliance.
(f) d. The Offerors will furnish without charge to the Underwriters and make generally available to their security holdersthe Underwriters copies of the Registration Statement (four of which shall be signed and shall be accompanied by all exhibits, as soon as it is practicable to do soincluding any which are incorporated by reference, but in which have not previously been furnished), each Preliminary Prospectus, the Effective Prospectus and the Final Prospectus, and all amendments and supplements thereto, including any event not later than 18 months prospectus or supplement prepared after the effective date of the 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) deliver to the Underwriters at such office or offices as the 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 after the Registration Statement becomes effective, send to the Underwriters as many additional copies of the Final Prospectus and any supplement thereto as the Underwriters may reasonably request.
f. The Offerors shall make generally available to its security holders, in the manner contemplated by Rule 158(b) under the Securities Act as promptly as 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 occurs, an earnings statement (which need not be auditedsatisfying the provisions of Section 11(a) in reasonable detail, of the Securities Act covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) g. The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Designated Capital Securities substantially in accordance with the purposes as set forth under the caption "Use of Proceeds" in the Final Prospectus.
h. During a period of five years from the effective date of the Registration Statement, the Offerors will furnish to the Underwriters copies of all reports and other communications (ifinancial or other) furnished by the Company to its stockholders and the Trust to the holders of its Capital Securities and, as soon as available, copies of any reports or financial statements furnished or filed by the Offerors to or with the Commission or any national securities exchange on which any class of securities of the Offerors may be listed.
i. The Offerors will comply will, from time to time, after the effective date of the Registration Statement, file with all registrationthe Commission such reports as are required by the Securities Act, filing and reporting requirements of the Exchange Act and the Rules and Regulations, and shall also file with state securities commissions in 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 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 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 Underwriters concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Underwriters, responding to or commenting on such rumor, publication or event.
l. The Company will not take, directly or indirectly, any action which would cause or result in the delisting of the Trust's Capital Securities on the American Stock Exchange, 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.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters Purchasers that:
(a) The Company will pay or cause to be paid reasonable counsel fees and expenses of the Offerors and the Administrative Trustees on behalf Purchasers in connection with the issuance and delivery of the Trust will prepare Preferred Securities as provided in Section 6 hereof and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance other Offered Securities as contemplated hereby. The Company will pay or cause to be paid all taxes, if any, on Rule 430A under the Act, and will not file any amendment to issuance 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 Act or the rules and regulations thereunderOffered Securities.
(b) The Offerors will advise the Underwriters promptly of any request As of the Commission 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 amendment the purpose of enabling the Company to issue the Warrants and the Stock issuable upon the exercise of the Registration Statement Warrants. The number of shares so reserved from time to time, as theretofore increased or for supplement 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 may thereafter be obligated to issue by reason of adjustments 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issuedWarrants.
(c) The Offerors will cooperate If, on or prior to August 31, 2003, the Company does not disclose in a public press release (and, if required, in any report required to be filed with you and your counsel the Commission) such material nonpublic information that has been provided to the Purchasers in order connection with the transactions contemplated by the Company Transaction Documents, the 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 qualify purchase or sell the Preferred Offered Securities for sale (the "Disclosure"), then the per annum interest rate under the securities laws Notes will increase by 0.5%, to be effective from September 1, 2003 until the last to occur of such jurisdictions as (i) the Underwriters may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution date of the Preferred Securities Disclosure and (or obtain exemptions from ii) September 30, 2003. Such adjustment in the application of such laws)interest rate under the Notes, PROVIDED that neither Offeror 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 to qualify as a foreign corporation in this subsection (c); provided, however, that nothing contained in this subsection (c) shall modify or to file a general consent to service otherwise affect any rights Purchasers have under Section 3(e) 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 purposeRegistration Rights Agreement.
(d) The Offerors will furnish Company shall not seek judicial relief from its obligations hereunder. In the Underwriters with as many copies of any Preliminary Prospectus as event the Underwriters may reasonably request and, during the period when delivery of Company becomes a prospectus is required debtor under the ActBankruptcy Code, the Offerors will furnish Company hereby acknowledges that the Underwriters with as many copies provisions of 11 U.S.C. Sec. 365(c)(2) shall apply to this Agreement, the Trust Agreement and the terms of the Prospectus in final form, or as thereafter amended or supplemented, as Warrants and 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 requestTrust Preferred Securities.
(e) IfThe Company shall, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements thereinat all times, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, any financial statement 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 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 Trust as an appropriate amendment entity distinct from the Company and not liable for the debts, 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 Registration Statement Company's liability under the Notes and obligations under the Warrants, or supplement (ii) any right of offset or right of recoupment with respect 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 claims of the circumstances when it is so delivered, not misleading, or so that Trust against the Prospectus will comply with lawCompany under the Notes.
(f) The Offerors will make generally available to their security holdersTrust shall conduct its affairs in its own name and strictly in accordance with the Trust Charter Documents and observe all necessary, as soon as it is practicable to do soappropriate and customary trust formalities, including, but in any event not later than 18 months after the effective date limited to, holding all regular and special meetings appropriate to authorize all actions, keeping separate and accurate minutes of the Registration Statementits meetings, an earnings statement (which need passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not be audited) in reasonable detaillimited to, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act payroll and Rule 158 thereunder and will advise you in writing when such statement has been so made availableintercompany transaction accounts.
(g) The Company will, will use its commercially reasonable best efforts to obtain for five years from the First Closing Date, deliver to each UnderwriterTrust Preferred Securities, as soon as they are availablereasonably practicable, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, a rating from a nationally recognized statistical rating organization as that term is defined described in the rules and regulations Rule 436(g)(2) under the Securities Act, which are not consolidated in the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Offerors Offerors, jointly and severally severally, covenant and agree with the several Underwriters that:
(a) The Company and If the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the effective time of effectiveness of the Registration Statement is not prior to the execution and delivery of this Agreement, the Offerors will use its best efforts to 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 on 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 ActAct and, and will if the Underwriters do not file any amendment object to the Registration Statement or supplement to contents thereof, will comply with such Rules. Upon compliance with such Rules, the Prospectus of which Offerors will so advise 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) promptly. The Offerors will advise the Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement and counsel to the Prospectus or for any additional information, or Underwriters promptly of the issuance by the Commission or any state securities commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectusinstitution of any proceedings for that purpose, or of any notification of the suspension of the qualification of the Designated Preferred Securities for offering or sale in any jurisdiction, jurisdiction or of the institution initiation or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(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 also advise the Underwriters 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 counsel to the Underwriters such number promptly of conformed copies any request of the Commission for 16 Robexx X. Xxxxx & Xo. Incorporated December ______, 1997 Page 16 amendment or supplement of the Registration Statement, without exhibitsof 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 all amendments thereto, as the public offering of the Designated Preferred Securities by the Underwriters may reasonably requestif such 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.
(eb) If, during the period in which at any time when a prospectus relating to the Designated Preferred Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact fact, or would omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if for any other reason it shall be is necessary at any time to amend or supplement the Prospectus to comply with the Act or to file under the Exchange Act any lawdocument which would be deemed to be incorporated by reference in the Registration Statement to comply with the Act or the Exchange Act, the Offerors promptly will advise the Underwriters and counsel to the Underwriters and will promptly prepare and file with the Commission Commission, at its expense, an appropriate amendment to the Registration Statement or supplement file such document which will correct such statement or omission or an amendment which will effect such compliance; and, if any Underwriter is required to the Prospectus so that the Prospectus as so amended or supplemented will not include an untrue statement of deliver a material fact or omit to state any material fact necessary in order to make the statements therein in light of the circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months prospectus after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detailthe Offerors, covering a period of at least 12 consecutive months beginning after the effective date upon request of the Registration StatementUnderwriters, which earnings statement shall satisfy will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.10(a)(3)
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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) If the Offerors elect to rely on Rule 434 of the Act, the Offerors will 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 with copies of the 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(cd) 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 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.
(de) 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 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.
(ef) If, during the period in which If at any time when a prospectus relating to the Preferred Securities is required by law to be delivered by an Underwriter or dealer, under the Act any event shall occur occurs as a result of which the Prospectus as then amended Prospectus, including any amendments or supplemented supplements, would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if for any other reason it shall be is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Offerors propose for use by the Underwriters in connection with the offering of the Preferred Securities which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with any lawthe Act, the Offerors promptly will advise you thereof and will promptly prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement which will correct such statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to the Prospectus so that the Prospectus as so amended deliver a prospectus nine months 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months 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 necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(g) Not later than September 30, 2004, the Company will make generally available to its security holders an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) During the period of five years hereafter, the Company will furnish you with a copy (i) as soon as practicable after the 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 release thereof, of each material press release in respect of the Company; and (iii) as soon as available, of each report of the Company mailed to stockholders.
(i) The Offerors will apply use the net proceeds received by it from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" manner specified in the Prospectus.
(ij) 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 Pricing Date, the 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 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 and the American Stock ExchangeThe Nasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 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 Preferred Capital Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(c) The Offerors will cooperate with you the Underwriters and your the Underwriters' counsel in order to qualify the Preferred Capital Securities for sale under the securities laws of such jurisdictions as the Underwriters 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 Capital Securities (or obtain exemptions from the application of such laws), PROVIDED 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 be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you the Underwriters in writing when such statement has been so made available.
(g) The Company will, for five three years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Capital Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
13 (i) The Offerors will comply with all registration, filing and reporting requirements use their best efforts to maintain the designation of the Exchange Act and Capital Securities on the American Stock ExchangeNasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. (a) The Offerors jointly and severally covenant and agree with the several Underwriters that:
(ai) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of use their best efforts to cause the Registration Statement in reliance on Rule 430A under the Act, to become effective and will not not, either before or after effectiveness, file any amendment to the Registration Statement 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 Underwriters Representatives shall not previously have been advised and furnished with a copy and as or to which the Underwriters Representatives 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 thereunderRules.
(bii) The Offerors will advise the Underwriters 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 suspending the 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, Prospectus or of the institution or threatening of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(ciii) The Offerors will cooperate with you and your counsel the Representatives in order endeavoring to qualify the Preferred Securities for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Underwriters Representatives reasonably may reasonably have designated in writing writing, and to continue will make such qualifications in effect applications, file such documents and furnish such information as may be reasonably required for so long as that purpose; provided, however, the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), PROVIDED that neither Offeror 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 now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports reports, and other documents documents, as are or may be requested by required to continue such qualifications in effect for so long a period as the Underwriters Representatives may reasonably request for that purposedistribution of the Preferred Securities.
(div) The Offerors will furnish deliver to, or upon the Underwriters with order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus preliminary prospectus as the Underwriters Representatives may reasonably request andrequest. 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 Prospectus is required under the Act, the Offerors will furnish the Underwriters with Act as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, Representatives may reasonably request. The Offerors will deliver to the UnderwritersRepresentatives, at or before the Closing Date, two one signed copies copy of the Registration Statement and all amendments thereto thereto, including all exhibits filed therewith, and will deliver to the Underwriters Representatives such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters Representatives may reasonably request.
(ev) If, If during the period in which a prospectus Prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which which, in the judgment of the Offerors or in the opinion of counsel for the Underwriters, with the concurrence of the Offerors and its counsel, it becomes necessary to amend or supplement the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if for any other reason it shall be 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 Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the 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 not, in light of the circumstances when it is so delivered, not be misleading, or so that the Prospectus will comply with the law.
(fvi) The Offerors will make generally available to their security holdersholders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than 18 months the forty-fifth (45th) day after the effective date fiscal quarter first occurring one year after the Effective Date, a consolidated earnings statement of the Registration Statement, an earnings statement Offerors (which need not be audited) in reasonable detail, detail covering a period of at least 12 twelve (12) consecutive months beginning after the effective date of the Registration StatementEffective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement Statement has been so made available.
(gvii) The Company Offerors will, for five a period of three (3) years from the First Closing Date, deliver to each Underwriter, as soon as they are available, the Representatives copies of its annual report and copies of all other documents, reports and information furnished by the Company Offerors to its security holders their 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 Company Offerors will deliver to each Underwriter the Representatives similar reports with respect to any significant subsidiaries, as that term is defined in the rules and regulations under the ActRules, which are not consolidated in the Company's Offerors' financial statements.
(hviii) As soon as the Offerors are advised thereof, they will advise the Representatives, and confirm the advice in writing, that the Registration Statement and any amendments shall have become effective.
(ix) The Offerors will apply use the net proceeds from the sale of the Junior Subordinated Debentures Preferred Securities and the Preferred Securities substantially Debentures in accordance with the purposes set 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 Prospectusoffering and sale of the Preferred Securities.
(ixi) The Offerors will comply with all registrationmaintain a transfer agent and, filing and reporting requirements if necessary under the jurisdiction of incorporation of the Exchange Act Offerors, a registrar for the Preferred Securities and will use their best efforts to establish and maintain the listing of the Preferred Securities (and, subject to distribution thereof, the Debentures) on the American Stock Exchange.
(xii) Except as contemplated hereby or by the Prospectus, the Offerors will not, 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 shares of the Preferred Securities or securities convertible into shares of the Preferred Securities without your prior written consent. Furthermore, the Offerors will cause each executive officer and director of the Offerors (as set forth in the Prospectus) to furnish to you, on or prior to the 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, except with your written consent; provided, however, that nothing herein shall prevent such persons from transferring or assigning their shares of the Preferred Securities pursuant to a bona fide gift or pledge transaction. The foregoing covenants and agreements shall apply to any successor of the Offerors, including, without limitation, any entity into which the Offerors might convert or merge.
Appears in 1 contract
Samples: Underwriting Agreement (Abc Bancorp Capital Trust I)
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of 1933 Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in writing each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus and to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purpose1933 Act or the 1934 Act.
(db) The Offerors will furnish the Underwriters with as many copies xx xxxx amendment and supplement to the Final Supplemented Prospectus relating to the offering of any Preliminary Prospectus the Preferred Securities in such quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Preferred Securities by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the 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, or if for any other reason it shall be necessary during such period to 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 then amended supplemented or supplemented would include an amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Preferred Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the 1934 Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawRepresentative and Dewey Ballantine LLP.
(fc) The Offerors will endeavor, in cooperation xxxx xxx Xxxxxxxiters, to qualify the Preferred Securities and, to the extent required or advisable, the 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 Representative may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the 1933 Act, which are ) covering a twelve-month period beginning not consolidated in later than the xxxxx xxy of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply use best efforts to effect the net proceeds from listing of the sale Preferred Securities on the New York Stock Exchange; if the Preferred Securities are exchanged for Junior Subordinated Notes, the Company will use its best efforts to effect the listing of the Junior Subordinated Debentures Notes on any exchange on which the Preferred Securities 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 substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectusissued pursuant to this Agreement).
(ig) The Offerors will comply As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Final Supplemented Prospectus with all registration, the Commission and to advise the Representative of such filing and reporting requirements of the Exchange Act and the American Stock Exchangeto confirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several ------------------------- Underwriters that:
(a) The Company and Offerors will promptly file the Administrative Trustees on behalf of the Trust will prepare and timely file Prospectus with the Commission under pursuant to Rule 424(b) 424 under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Securities 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 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 FPL Group will advise deliver to the Representatives and to Counsel for the Underwriters promptly of any request of the Commission for amendment one signed copy of the Registration Statement or for supplement to the Prospectus or for any additional informationor, or of the issuance by the Commission of any stop order suspending the effectiveness 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 use date of this agreement, FPL Group will deliver to the Prospectus, of Underwriters through 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 for that purpose, and the Offerors will use their best efforts to prevent the issuance of any such stop order preventing or suspending the use Representatives as many copies of the Prospectus or suspending such qualification and to obtain as soon as possible the lifting thereof, if issuedRepresentatives may reasonably request for the purposes contemplated by the Securities Act.
(c) FPL Group will pay or cause to be paid all expenses in connection with the (i) preparation and filing of the Registration Statement and Prospectus, (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 the account of the Underwriters, in reasonable quantities, of copies of the Registration Statement, the Prospectus, the Subordinated Indenture, the Trust Agreement and the Guarantee Agreement. FPL Group 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 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 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 an aggregate of $5,000. 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.
(d) During a period of nine months after the date of this agreement, if any event relating to or affecting any of the Offerors shall occur which, in the opinion of FPL Group or FPL Group Capital, should be set forth in a supplement to or an amendment of the Prospectus in order to make the Prospectus not misleading in the light of the circumstances when it is delivered to a 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 Prospectus which will supplement or amend the Prospectus so that as supplemented or amended it will not 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; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date of this agreement, FPL Group upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 10 of the Securities Act.
(e) The Offerors will furnish such proper information as may be lawfully required and otherwise cooperate with you in qualifying the Trust Preferred Securities, the Trust Guarantee, and your counsel in order to qualify the Preferred Securities extent required or advisable, the other Offered Securities, for offer and sale under the securities blue sky laws of such jurisdictions as the Underwriters Representatives may reasonably have designated designate and will pay or cause to be paid filing fees and expenses (including fees and expenses of counsel) in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution aggregate not exceeding $5,000, provided that none of the Preferred Securities (or obtain exemptions from the application of such laws), PROVIDED that neither Offeror Offerors shall be required to qualify as a foreign corporation or dealer in securities, or to file a general consent any consents to service of process in under the laws of any jurisdiction where it is not now so qualified jurisdiction, or required to file such a consent. The Offerors will, from time meet other requirements deemed by any Offeror to time, prepare and file such statements, reports and other documents as may be requested by the Underwriters for that purposeunduly burdensome.
(df) The Offerors FPL Group 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 timely file such reports pursuant 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, Exchange Act as the Underwriters may reasonably request.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact are necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited, unless required so to be under Section 11(a) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration StatementSecurities Act) for the purposes of, which earnings statement shall satisfy and to provide the requirements benefits contemplated by, the last paragraph of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made availableSecurities Act.
(g) The Company will, for five years from Offerors will advise the First Closing Date, deliver to each Underwriter, as soon as they are available, copies Representatives promptly of its annual report and copies the filing of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange Prospectus pursuant to the requirements Rule 424 and of such exchange any amendment or with the Commission pursuant supplement to the Act Prospectus or Registration Statement or, prior to the termination of the offering of the Offered Securities hereunder, of official notice of the institution of proceedings for, or the Exchange Act. The Company will deliver to each Underwriter similar reports with respect to significant subsidiariesentry of, as that term is defined in a stop order suspending the rules and regulations under the Act, which are not consolidated in the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale effectiveness of the Junior Subordinated Debentures and Registration Statement and, if such a stop order should be entered, use every commercially reasonable effort to obtain the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectusprompt removal thereof.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company Offerors will timely file the Prospectus and any preliminary prospectus used in connection with the Administrative Trustees on behalf offering of the Preferred Trust will prepare and timely file Securities with the Commission under pursuant to Rule 424(b) 424. The Offerors have complied and will comply with Rule 433 under the Securities Act a Prospectus containing information previously omitted at in connection with the time of effectiveness offering and sale of the Registration Statement Preferred Trust Securities, including applicable provisions in reliance on Rule 430A under the Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus respect 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 timely filing with the Act or the rules Commission, legending and regulations thereunderrecord-keeping.
(b) The Offerors will advise the Underwriters promptly of any request prepare a final term sheet, containing a description of the Commission for amendment pricing terms of the Registration Statement or for supplement to Offered Securities, substantially in the Prospectus or for any additional information, or form of the issuance Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission of any stop order suspending pursuant to Rule 433 under the 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 for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issuedAct.
(c) The Offerors FPL will cooperate with you deliver or cause to be delivered to the Representatives and your counsel in order to qualify the Preferred Securities Counsel for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to continue such qualifications in effect for so long 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 may reasonably request for distribution of through 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 Representatives as many copies of the Prospectus in final form, or as thereafter amended or supplemented, and Issuer Free Writing Prospectus as the Underwriters mayRepresentatives may reasonably request for the purposes contemplated by the Securities Act.
(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, from time 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 time, reasonably request. The Offerors will deliver to the Representatives for the account of the Underwriters, at or before the Closing Datein reasonable quantities, 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 exhibitsany 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 all amendments theretothe Offered Securities. The Offerors shall not, as 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 may agree to pay in any other event and FPL shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably requestincurred 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) IfDuring a period of nine months after the date of this agreement, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, if any event relating to or affecting either of the Offerors shall occur as which, in the opinion of FPL, should be set forth in a result supplement to or an amendment of which the Prospectus as then amended or supplemented would include (including an untrue statement of a material fact or omit to state any material fact necessary Issuer Free Writing Prospectus) in order to make the statements therein, Prospectus not misleading in the light of the circumstances existing at the time the Prospectus when it is delivered to a purchaser, not misleadingFPL will forthwith at its expense prepare, 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 Commission, if required, and furnish to the Registration Statement Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement to or amend the Prospectus so that the Prospectus as so supplemented or amended or supplemented it will not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein contained therein, in the light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or so that supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date of this agreement, FPL upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus will comply complying with lawSection 10 of the Securities Act.
(f) The Offerors will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Preferred Trust Securities, the Trust Guarantee, and to the extent required or advisable, the other Offered Securities, for offer and sale under the blue sky laws of such United States jurisdictions as the Representatives may designate 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 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 other requirements deemed by either Offeror to be unduly burdensome.
(g) FPL will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited, unless required so to be under Section 11(a) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration StatementSecurities Act) for the purposes of, which earnings statement shall satisfy and to provide the requirements benefits contemplated by, the last paragraph of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Securities Act. The Company 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 the Company's financial statements.
(h) Prior to the termination of the offering of the Preferred Trust Securities, the Offerors will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton & Xxxxxxxx LLP, who are acting as counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters. The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and have not made any offer relating to the Preferred Trust Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Offerors with the Commission or retained by the Offerors under Rule 433 under the Securities Act, other than a pricing term sheet substantially in accordance with the purposes form as set forth under "Use of Proceeds" on Schedule I, and will not make any such offer without prior notice to the Representatives and to Counsel for the Underwriters, or any such offer to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the ProspectusUnderwriters.
(i) The Offerors will advise the Representatives promptly of the filing of the Prospectus pursuant to 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 hereunder, of official notice of the institution of proceedings for, 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 the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 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 registration, filing and reporting requirements applicable securities or blue sky laws of the Exchange Act and various jurisdictions in the American Stock ExchangeUnited States in connection with such distribution. The provisions of this Section 7(h) shall survive the delivery of the Preferred Trust Securities.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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) If the Offerors elect to rely on Rule 434 of the Act, the Offerors will 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 with copies of the 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(cd) 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 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.
(de) 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, 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.
(ef) If, during the period in which If at any time when a prospectus relating to the Preferred Securities is required by law to be delivered by an Underwriter or dealer, under the Act any event shall occur occurs as a result of which the Prospectus as then amended Prospectus, including any amendments or supplemented supplements, would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if for any other reason it shall be is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Offerors propose for use by the Underwriters in connection with the offering of the Preferred Securities which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with any lawthe Act, the Offerors promptly will advise you thereof and will promptly prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement which will correct such statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to the Prospectus so that the Prospectus as so amended deliver a prospectus nine months 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months 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 necessary to permit compliance with the requirements of Section 10(a)(3) of the Act.
(g) Not later than September 1, 2001 the Company will make generally available to its security holders an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall will satisfy the requirements provisions of the last paragraph of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) During the period of five years hereafter, the Company will furnish you with a copy (i) as soon as practicable after the 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 release thereof, of each material press release in respect of the Company; and (iii) as soon as available, of each report of the Company mailed to stockholders.
(i) The Offerors will apply use the net proceeds received by it from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" manner specified in the Prospectus.
(ij) 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 Pricing Date, the 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 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 and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with each of the several Underwriters that:
(a) The Company Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not
(b) As soon as the Administrative Trustees on behalf Offerors are advised or obtain knowledge thereof, the Offerors will advise the Representative (i) when the Registration Statement, as amended, has become effective; if the provisions of the Trust will prepare and timely file with the Commission under Rule 424(b) 430A promulgated under the Act a will be relied upon, when the Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement has been filed in reliance on accordance with said Rule 430A under the Act, and will not file when any post-effective 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.
becomes effective; (bii) The Offerors will advise the Underwriters promptly of any request of made by the Commission for amendment of amending the Registration Statement Statement, for supplementing any Preliminary Prospectus or for supplement to the Prospectus or for any additional information, or (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Preferred Securities for offering Prospectus or sale in any jurisdiction, amendment or of supplement thereto or the institution or threatening threat of any proceedings investigation or proceeding for that purpose, and the Offerors will use their its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and and, if issued, to obtain the lifting thereof as soon as possible the lifting thereof, if issuedpossible.
(c) The Offerors will cooperate with you and your counsel in order (i) use their best efforts to qualify 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 Underwriters Representative may reasonably have designated in writing and to designate, (ii) continue such qualifications in effect for so as long as may be necessary to complete the Underwriters may reasonably request for distribution of the Trust Preferred Securities Securities, and (or obtain exemptions from iii) make such applications, file such documents and furnish such information as may be required for the application of such lawspurposes set forth in clauses (i) and (ii); provided, PROVIDED however, that neither Offeror the Offerors shall not be required to qualify as a foreign corporation or to file a general or unlimited 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 purposejurisdiction.
(d) The Offerors will furnish consent to 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 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 final form, connection with the offering or as sale of the Trust Preferred Securities and for such period of time 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 Prospectus is required by law to be delivered by an Underwriter or dealerin connection therewith. If, at any time when a Prospectus relating to the Trust Preferred Securities is required to be delivered under the Act, any event shall occur occurs as a result of which the Prospectus Prospectus, as then amended or supplemented supplemented, would include an any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, therein not misleading, or if for any other reason it shall be becomes necessary at any time to amend or supplement the Prospectus to comply with any lawthe Act or the Rules and Regulations, 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 appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that which will correct such statement or omission or effect such compliance, each such amendment or supplement to be reasonably satisfactory to counsel to 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawUnderwriters.
(fe) The Offerors will make generally available to their security holders, as As soon as it is practicable to do sopracticable, but in any event not later than 18 months 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Offerors during which the effective date of the Registration StatementStatement 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 its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representative, an 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) in reasonable detailaudited unless required by the Act or the Rules and Regulations, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(gf) The Company will, for During a period of five years from after the First Closing Datedate hereof, the Offerors will furnish to their stockholders, as soon as practicable, annual reports (including financial statements audited by independent public accountants) and unaudited quarterly reports of earnings, and will deliver to the Representative:
i) concurrently with furnishing such quarterly reports to its stockholders, statements of income of the Offerors for each Underwriterquarter in the form furnished to the Offerors' stockholders;
ii) concurrently with furnishing such annual reports to its stockholders, a balance sheet of the Offerors as at the end of the preceding fiscal year, together with statements of operations, stockholders' equity, and cash flows
iii) as soon as they are available, copies of its annual report and all information (financial or other) mailed to stockholders;
iv) as soon as they are available, copies of all other documents, reports and information financial statements furnished by the Company to its security holders or filed with the Commission, the National Association of Securities Dealers, Inc. ("NASD") or any securities exchange pursuant exchange;
v) every press release and every material news item or article of interest to the requirements financial community in respect of the 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 exchange or with five-year period, if the Commission pursuant Offerors have active subsidiaries, the foregoing financial statements will be on a consolidated basis to the Act or extent that the Exchange Act. accounts of the Offerors are consolidated, and will be accompanied by similar financial statements for any significant subsidiary which is not so consolidated.
(g) The Company Offerors will deliver to each Underwriter similar reports with respect to significant subsidiariesmaintain a Transfer Agent and, as that term is defined in the rules and regulations if necessary under the Actjurisdiction of incorporation of the Offerors, a Registrar (which are not consolidated in may be the Company's financial statementssame entity as the Transfer Agent) for the Trust Preferred Securities.
(h) 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 Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits) and the Prospectus, and all amendments and supplements thereto, in each case as soon as available and in such quantities as the Representative may reasonably request.
(i) The Offerors will 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 included for quotation on the NASDAQ National Market prior to the Closing Time.
(k) Neither the Offerors nor any of their officers or directors, 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 stabilize or manipulate the price of any 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 from the sale of the Junior Subordinated Debentures and offering received by it in the Preferred Securities substantially in accordance with the purposes manner set forth under the caption "Use of Proceeds" in the Prospectus.
(im) 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 Regulations, the Exchange Act, and the Exchange Act Regulations, and all such reports, forms and documents filed will comply as to form and substance with all registrationthe applicable requirements under the Act, filing the Rules and reporting requirements of Regulations, the Exchange Act and the American Stock ExchangeExchange Act Regulations.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with each of the several Underwriters that:
(a) The Company Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the Administrative Trustees on behalf time of execution of this Agreement, to become effective as promptly as practicable. If required, the Trust Offerors will prepare file the Prospectus and timely file any amendment or supplement thereto with the Commission under in the manner and within the time period required by Rule 424(b) under the Act Act. During any time when a Prospectus containing information previously omitted at prospectus relating to the time of effectiveness of the Registration Statement in reliance on Rule 430A Trust Preferred Securities is required to be delivered under the Act, the Offerors (i) will comply with all requirements imposed upon it by the Act and the Rules and Regulations to the extent necessary to permit the continuance of sales of or dealings in the Trust Preferred Securities in accordance with the provisions hereof and of the Prospectus, as then amended or supplemented, and (ii) will not file with the Commission the Prospectus or the amendment referred to in Section 2(a) hereof, any amendment or supplement to such Prospectus or any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters 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 Underwriters Representatives shall not have reasonably objected in writing promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereundergiven their consent.
(b) The As soon as the Offerors are advised or obtain knowledge thereof, the, Offerors will advise the Underwriters promptly Representatives 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 of made by the Commission for amendment of amending the Registration Statement Statement, for supplementing any Preliminary Prospectus or for supplement to the Prospectus or for any additional information, or (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Preferred Securities for offering Prospectus or sale in any jurisdiction, amendment or of supplement thereto or the institution or threatening threat of any proceedings investigation or proceeding for that purpose, and the Offerors will use their its best efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and and, if issued, to obtain the lifting thereof as soon as possible the lifting thereof, if issuedpossible.
(c) The Offerors will cooperate with you (i) use their best efforts to arrange for the qualification of the Trust Preferred Securities, the Debentures and your counsel in order to qualify the Preferred Securities Guarantee for offer and sale under the state securities or blue sky laws of such jurisdictions as the Underwriters Representatives may reasonably have designated in writing and to designate, (ii) continue such qualifications in effect for so as long as may be necessary to complete the Underwriters may reasonably request for distribution of the Trust Preferred Securities Securities, and (or obtain exemptions from iii) make such applications, file such documents and furnish such information as may be required for the application of such lawspurposes set forth in clauses (i) and (ii); provided, PROVIDED however, -------- ------- that neither Offeror the Offerors shall not be required to qualify as a foreign corporation or to file a general or unlimited 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 purposejurisdiction.
(d) The Offerors will furnish consent to 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 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 final form, connection with the offering or as sale of the Trust Preferred Securities and for such period of time 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 Prospectus is required by law to be delivered by an Underwriter or dealerin connection therewith. If, at any time when a Prospectus relating to the Trust Preferred Securities is required to be delivered under the Act, any event shall occur occurs as a result of which the Prospectus Prospectus, as then amended or supplemented supplemented, would include an any untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, therein not misleading, or if for any other reason it shall be becomes necessary at any time to amend or supplement the Prospectus to comply with any lawthe Act or the Rules and Regulations, 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 appropriate amendment to the Registration Statement or an amendment or supplement to the Prospectus so that which will correct such statement or omission or affect such compliance, each such amendment or supplement to be reasonably satisfactory to counsel to 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawUnderwriters.
(fe) The Offerors will make generally available to their security holders, as As soon as it is practicable to do sopracticable, but in any event not later than 18 months 45 days after the end of the 12-month period beginning on the day after the end of the fiscal quarter of the Offerors during which the effective date of the Registration StatementStatement 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 its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Representatives, an 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) in reasonable detailaudited unless required by the Act or the Rules and Regulations, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement.
(f) The Offerors will maintain a Transfer Agent and, which earnings statement shall satisfy if necessary under the requirements jurisdiction of Section 11(a) incorporation of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made availableOfferors, a Registrar (which may be the same entity as the Transfer Agent) for the Trust Preferred Securities.
(g) The Company willOfferors will furnish, for five years from without charge, to the First Closing DateRepresentatives or on the Representatives' order, deliver to at such place as the Representatives may designate, copies of the Preliminary Prospectus, the Registration Statement and any pre-effective or post-effective amendments thereto (two of which copies will be signed and will include all financial statements and exhibits) and the Prospectus, and all amendments and supplements thereto, in each Underwriter, case as soon as they are available, copies of its annual report available and copies of all other documents, reports and information furnished by in such quantities as the Company to its security holders 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. The Company 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 the Company's financial statementsRepresentatives may reasonably request.
(h) The Offerors will not, directly or indirectly, without the prior written consent of Sutro & Co. Incorporated, 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 or Debentures or any debt securities substantially similar to the Debentures or equity securities substantially similar to the Trust Preferred Securities for a period of 180 days after the date hereof, except pursuant to this Agreement, or as contemplated by the Prospectus.
(i) The Offerors will cause the Trust Preferred Securities to be duly included for listing on the AMEX prior to the Closing Time.
(j) Neither the Offerors nor any of their officers or directors, 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 stabilize or manipulate the price of any 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 from the sale of the Junior Subordinated Debentures and offering received by it in the Preferred Securities substantially in accordance with the purposes manner set forth under the caption "Use of Proceeds" in the Prospectus.
(il) 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 Regulations, the Exchange Act, and the Exchange Act Regulations, and all such reports, forms and documents filed will comply as to form and substance with all registrationthe applicable requirements under the Act, filing the Rules and reporting requirements of Regulations, the Exchange Act and the American Stock ExchangeExchange Act Rules and Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Glacier Water Services Inc)
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of Securities Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated sufficient conformed copies of the Registration Statement, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments thereto (in writing each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Prospectus and to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purposeSecurities Act or the Exchange Act.
(db) The Offerors will furnish the Underwriters with as many copies of any Preliminary each amendment and supplement to the Prospectus and the Final Supplemented Prospectus relating to the offering of the Notes in such quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Notes by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Representative, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment 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, or if for any other reason it shall be necessary during such period to 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 then amended supplemented or supplemented would include an amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it the Final Supplemented Prospectus is so delivered, not misleading, misleading or so that the Prospectus which will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in effect any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.necessary
Appears in 1 contract
Samples: Underwriting Agreement (Southern Co)
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file the Prospectus with the Commission under pursuant to Rule 424(b) 424 under the Securities Act. The Offerors have complied and will comply with Rule 433 under the Securities Act a Prospectus containing information previously omitted at in connection with the time of effectiveness offering and sale of the Registration Statement Preferred Trust Securities, including applicable provisions in reliance on Rule 430A under the Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus respect 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 timely filing with the Act or the rules Commission, legending and regulations thereunderrecord-keeping.
(b) The Offerors will advise the Underwriters promptly of any request prepare a final term sheet, containing a description of the Commission for amendment pricing terms of the Registration Statement or for supplement to Offered Securities, substantially in the Prospectus or for any additional information, or form of the issuance Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission of any stop order suspending pursuant to Rule 433 under the 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 for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issuedAct.
(c) The Offerors FPL Group will cooperate with you deliver or cause to be delivered to the Representatives and your counsel in order to qualify the Preferred Securities Counsel for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to continue such qualifications in effect for so long 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 may reasonably request for distribution of through 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 Representatives as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters mayRepresentatives may reasonably request for the purposes contemplated by the Securities Act.
(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, from time 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 time, reasonably request. The Offerors will deliver to the Representatives for the account of the Underwriters, at or before the Closing Datein reasonable quantities, 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 exhibitsany 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 of all amendments thereto, as FPL Group [1and/or FPL Group Capital] shall reimburse or cause to be reimbursed the Underwriters may for out-of-pocket expenses, reasonably requestincurred 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) IfDuring a period of nine months after the date of this agreement, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, if any event relating to or affecting any of the Offerors shall occur as which, in the opinion of FPL Group [1or FPL Group Capital], should be set forth in a result supplement to or an amendment of which the Prospectus as then amended or supplemented would include (including an untrue statement of a material fact or omit to state any material fact necessary Issuer Free Writing Prospectus) in order to make the statements therein, Prospectus not misleading in the light of the circumstances existing at the time the Prospectus when it is delivered to a purchaser, not misleadingFPL Group [1or FPL Group Capital] will forthwith at its expense prepare, 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 Commission, if required, and furnish to the Registration Statement Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement to or amend the Prospectus so that the Prospectus as so supplemented or amended or supplemented it will not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein contained therein, in the light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or so that supplement. In case any Underwriter is required to deliver a Prospectus after the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 expiration of nine months after the effective date of this agreement, FPL Group [1or FPL Group Capital] upon the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date request of the Registration StatementRepresentatives will furnish to the Representatives, which earnings statement shall satisfy at the requirements expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 11(a) 10 of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made availableSecurities Act.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree with the several Underwriters thateach Underwriter as follows:
(a) The Company Offerors will notify the Representative immediately, and confirm the Administrative Trustees on behalf notice in writing, (i) of the Trust will prepare and timely file with effectiveness of any amendment to the Registration Statement, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Act, and will not file for 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 copy and as to which the Underwriters shall have reasonably objected in writing promptly after reasonable notice thereof any amendment or which is not in compliance with the Act or the rules and regulations thereunder.
(b) 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 and (iv) 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening initiation of any proceedings for that purpose, and the . The Offerors will use their best efforts make every reasonable effort to prevent the issuance of any such stop order preventing and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will give the Representative notice of their intention to file or suspending prepare (i) any amendment to the 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 such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Representative or counsel for the Underwriters shall reasonably object. Subject to the foregoing, the Offerors will promptly prepare the supplement to Prospectus or suspending such qualification Supplement to reflect the terms of the Preferred Securities and the terms of the offering. The Offerors will file the Prospectus Supplement pursuant to obtain as soon as possible Rule 424(b) under the lifting thereof, if issuedAct not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement.
(c) The Offerors will cooperate with you deliver to the Representative as many signed copies of the Registration Statement as reasonably requested (including exhibits filed therewith or incorporated by reference therein and your counsel in order documents incorporated or deemed to qualify the Preferred Securities for sale under the securities laws of such jurisdictions be incorporated by reference therein) as the Underwriters may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters Representative may reasonably request for distribution and will also deliver to the Representative a conformed copy of the Preferred Securities Registration Statement as originally filed and of each amendment thereto (or obtain exemptions from without exhibits) for each of 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 purposeUnderwriters.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request andto each Underwriter, from time to time during the period when delivery of a prospectus the Prospectus is required to be delivered under the 1933 Act, the Offerors will furnish the Underwriters with as many such number of copies of the Prospectus in final form, or (as thereafter amended or supplemented, ) as such Underwriter may reasonably request for the Underwriters may, from time to time, reasonably request. The Offerors will deliver to purposes contemplated by the Underwriters, at 1933 Act or before the Closing Date, two signed copies respective applicable rules and regulations 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 requestCommission thereunder.
(e) If, during If at any time when the period in which a prospectus Prospectus is required by law the 1933 Act to be delivered by an Underwriter or dealerin connection with sales of the Preferred Securities, any event shall occur as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel to the Company and the Trust, to amend or supplement the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, Prospectus not misleading in the light of the circumstances existing at the time the Prospectus it is to be delivered to a purchaser, not misleading, or if for any other reason it shall be necessary at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with any lawthe requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will promptly will prepare and file with the Commission an appropriate subject to paragraph (b) above such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or supplement the Prospectus comply with such requirements; and the Offerors will furnish to the Prospectus so that the Prospectus as so amended Underwriters a reasonable number of copies of such amendment 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawsupplement.
(f) The Offerors will make generally available endeavor, in cooperation with the Underwriters, to their security holdersqualify the Preferred Securities (and the Preferred Securities Guarantee) and the Subordinated Debentures for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Representative may designate; provided, however, that none of the Offerors shall be obligated to qualify as soon as a foreign corporation in any jurisdiction in which it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made availablequalified.
(g) The Trust will make generally available to its security holders and to the Representative as soon as practicable but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company will, for (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 Trust's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(h) For a period of five years from after the First Closing DateTime, deliver the Company will furnish to the Representative and, upon request, to each Underwriter, as soon as they are available, copies of its annual report and 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 other 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 stockholders or security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectusgenerally.
(i) The Offerors will comply with all registration, filing and reporting requirements use best efforts to effect the listing of the Exchange Act Preferred Securities (including the Preferred Securities Guarantee with respect thereto) on the New York Stock Exchange; if the Preferred Securities are exchanged for Subordinated Debentures, the Company will use its best efforts to effect the listing of the Subordinated Debentures on the exchange 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 American Stock ExchangePreferred Securities issued pursuant to this Agreement).
Appears in 1 contract
Covenants of the Offerors. (a) The Offerors jointly and severally covenant and agree with the several Underwriters that:
(ai) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of use its best efforts to cause the Registration Statement in reliance on Rule 430A under the Act, to become effective and will not not, either before or after effectiveness, file any amendment to the Registration Statement 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 Underwriters Representatives shall not previously have been advised and furnished with a copy and as or to which the Underwriters Representatives 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 thereunderRules.
(bii) The Offerors will advise the Underwriters 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 suspending the 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, Prospectus or of the institution or threatening of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(ciii) The Offerors will cooperate with you and your counsel the Representatives in order endeavoring to qualify the Preferred Securities for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Underwriters Representatives reasonably may reasonably have designated in writing writing, and to continue will make such qualifications in effect applications, file such documents and furnish such information as may be reasonably required for so long as that purpose; provided however, the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), PROVIDED that neither Offeror 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 now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports reports, and other documents documents, as are or may be requested by required to continue such qualifications in effect for so long a period as the Underwriters Representatives may reasonably request for that purposedistribution of the Preferred Securities.
(div) The Offerors will furnish deliver to, or upon the Underwriters with order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus preliminary prospectus as the Underwriters Representatives may reasonably request andrequest. 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 Prospectus is required under the Act, the Offerors will furnish the Underwriters with Act as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, Representatives may reasonably request. The Offerors will deliver to the Underwriters, Representatives at or before the Closing Date, two one signed copies copy of the Registration Statement and all amendments thereto including all exhibits filed therewith, and will deliver to the Underwriters Representatives such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters Representatives may reasonably request.
(ev) If, If during the period in which a prospectus Prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which which, in the judgment of the Offerors or in the opinion of counsel for the Underwriters, with the concurrence of the Offerors and its counsel, it becomes necessary to amend or supplement the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if for any other reason it shall be 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 Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the 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 not, in light of the circumstances when it is so delivered, not be misleading, or so that the Prospectus will comply with the law.
(fvi) The Offerors will make generally available to their security holdersholders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than 18 months the forty-fifth day after the effective date fiscal quarter first occurring one year after the Effective Date, a consolidated earnings statement of the Registration Statement, an earnings statement Offerors (which need not be audited) in reasonable detail, detail covering a period of at least 12 twelve consecutive months beginning after the effective date of the Registration StatementEffective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement Statement has been so made available.
(gvii) The Company Offerors will, for a period of five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, the Representatives copies of its annual report and copies of all other documents, reports and information furnished by the Company Offerors to its security holders their 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 Company Offerors will deliver to each Underwriter the Representatives similar reports with respect to any significant subsidiaries, as that term is defined in the rules and regulations under the ActRules, which are not consolidated in the CompanyOfferors's financial statements.
(hviii) As soon as the Offerors are advised thereof, they will advise the Representatives, and confirm the advice in writing, that the Registration Statement and any amendments shall have become effective.
(ix) The Offerors will apply use the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set 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 Prospectusoffering and sale of the Preferred Securities.
(ixi) The Offerors will comply with all registrationmaintain a transfer agent and, filing and reporting requirements if necessary under the jurisdiction of incorporation of the Exchange Act Offerors, a registrar for the Preferred Securities and will use their best efforts to establish and maintain the American Stock Exchangelisting of the Preferred Securities (and, subject to distribution thereof, the Subordinated Debentures) on the Nasdaq National Market.
(xii) Except as contemplated hereby or by the Prospectus, the Offerors will not, 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 Securities or securities convertible into shares of the Preferred Securities without your prior written consent. Furthermore, the Offerors will cause each executive officer and director of the Offerors (as set forth in the Prospectus) to furnish to you, on or prior to the 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 90 days following the Effective Date, except with your written consent; provided however, that nothing herein shall prevent such persons from transferring or assigning their shares of the Preferred Securities pursuant to a bona fide gift or pledge transaction. The foregoing covenants and agreements shall apply to any successor of the Offerors, including without limitation, any entity into which the Offerors might convert or merge.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 (bi) 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 for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting withdrawal thereof, if issued.
(cd) 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 you the Underwriters and your their counsel in order to qualify the Trust Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters 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 Trust Preferred Securities (or obtain exemptions from the application of such laws), PROVIDED 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 consentqualified. 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.
(df) 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 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.
(eg) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law, and deliver, without charge, to the dealers (whose names and addresses will be furnished by the Underwriters to 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.
(fh) The Offerors will make generally available Company consents to their security holders, as soon as it is practicable to do so, but in the use of such Prospectus (and of any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be auditedamendments or supplements thereto) in reasonable detail, covering a period of at least 12 consecutive months beginning after accordance with the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) provisions of the Act and Rule 158 thereunder and will advise you with the securities or Blue Sky laws of the jurisdictions described in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they preliminary Blue Sky memorandum in which the Trust Preferred Securities are available, copies of its annual report and copies of all other documents, reports and information furnished lawfully offered by the Company Underwriter and by all dealers to its security holders or filed with any securities exchange pursuant to whom the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.Trust
Appears in 1 contract
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of 1933 Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing 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 to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purpose1933 Act or the 1934 Act.
(db) The Offerors will furnish the Underwriters Unxxxxxxxxrs with as many copies of any each amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of the Preferred Securities in such quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Preferred Securities by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as then amended 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, or if for any other reason it shall be necessary during such period to 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 would include an or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Preferred Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the 1934 Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawRepresentative and Dewey Ballantine.
(fc) The Offerors will endeavxx, xx xxxxxxxxxon with the Underwriters, to qualify the Preferred Securities and, to the extent required or advisable, the 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 Representative may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the 1933 Act, which are ) covering a twelve-month period beginning not consolidated in lxxxx xxxn the first day of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply use best efforts to effect the net proceeds from listing of the sale Preferred Securities on the New York Stock Exchange; if the Preferred Securities are exchanged for Junior Subordinated Notes, the Company will use its best efforts to effect the listing of the Junior Subordinated Debentures and Notes on any exchange on which the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectusare then listed.
(if) The Offerors will comply with all registrationDuring a period of 15 days from the date of this Agreement, filing and reporting requirements of neither the Exchange Act and Trust nor the American Stock Exchange.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
Appears in 1 contract
Covenants of the Offerors. The Offerors Dominion and the Trust jointly ------------------------- and severally covenant and agree to the following with each of the several Underwriters thatUnderwriters:
(a) The Company and If the Administrative Trustees Representatives so request, the Offerors, on behalf of or prior to the Trust Closing Date, will prepare and timely file with deliver to the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Representatives conformed copies of the Registration Statement as originally filed, including all exhibits, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to each such document, in reliance on Rule 430A under each case as soon as available and in such quantities as are reasonably requested by the ActRepresentatives. The Representatives will be deemed to have made such a request for copies for each of the several Underwriters, Xxxxx Xxxxxxxxxx LLP and will not file any amendment Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP, counsel to the Registration Statement or supplement Underwriters, with respect to any such documents that are not electronically available through 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 thereunderCommission's XXXXX filing system.
(b) The Offerors Dominion will advise pay all expenses in connection with (i) the Underwriters promptly of any request of the Commission for amendment preparation and filing by it of the Registration Statement or for supplement and the Prospectus and of this Agreement, (ii) the preparation, issuance and delivery of the Securities, (iii) any fees and expenses of the Trustees, (iv) the printing and delivery to the Prospectus or for any additional information, or Underwriters in reasonable quantities 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(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 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 the Prospectus (each as originally filed therewithand as subsequently amended), and (v) the fees and expenses incurred in connection with the listing of the Trust Preferred Securities and, if applicable, the Subordinated Debentures, on the New York Stock Exchange. In addition, Dominion will deliver pay the reasonable out of pocket fees and disbursements of Underwriters' outside counsel, Xxxxx Xxxxxxxxxx LLP and Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP, in connection with the qualification of the Securities under state securities or blue sky laws or investment laws (if and to the Underwriters extent such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as qualification is required by the Underwriters may reasonably requestor Dominion).
(ec) If, during the period in which time when a prospectus relating to the Securities is required by law to be delivered by an Underwriter or dealerunder the Securities Act, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if for any other reason it shall be is necessary at any time to amend or supplement the Prospectus to comply with any lawthe Securities Act, the Offerors Dominion promptly will (i) notify the Underwriters to suspend solicitation of purchases of the Trust Preferred Securities and (ii) at its expense, prepare and file with the Commission an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. During the period specified above, Dominion will continue to prepare and file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that Dominion shall not file such documents or amendments without also furnishing copies thereof to the Representatives, Xxxxx Xxxxxxxxxx LLP and Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP. Any such documents or amendments which are electronically available through the Commission's XXXXX filing system shall be deemed to have been furnished by Dominion to the Representatives and Xxxxx Xxxxxxxxxx LLP and Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP.
(d) Dominion will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or supplement to the Prospectus so that and will afford the Prospectus as so amended Representatives a reasonable opportunity to comment on any such proposed amendment or supplemented supplement; and Dominion will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make also advise the statements therein in light Representatives promptly of the circumstances when it is so deliveredfiling of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, not misleading, or so that the Prospectus will comply with lawif issued.
(fe) The Offerors Dominion will make generally available to their its security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement of Dominion (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning within three months after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act Securities Act.
(f) The Offerors will furnish such proper information as may be lawfully required and Rule 158 thereunder otherwise cooperate in qualifying the Securities for offer and will advise you sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate; provided, however, that the Offerors shall not be required in writing when such statement has been so made availableany state to qualify as a foreign corporation or business entity, or to file a general consent to service of process, or to submit to any requirements which either of them deems unduly burdensome.
(g) The Company willFees and disbursements of Xxxxx Xxxxxxxxxx LLP and Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP, who are acting as counsel for five years from the First Closing DateUnderwriters (exclusive of fees and disbursements of such counsel which are to be paid as set forth in Section 5(b)), deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished shall be paid by the Company to its security holders Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 6 or filed with any securities exchange pursuant to 7 hereof, Dominion shall reimburse the requirements Representatives for the account of the Underwriters for the amount of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules fees and regulations under the Act, which are not consolidated in the Company's financial statementsdisbursements.
(h) The Offerors During a period of thirty (30) days beginning on the date of this Agreement, Dominion and the Trust will apply not offer, sell, contract to sell or otherwise dispose of any Trust Preferred Securities, any other beneficial interest in the net proceeds from assets of the Trust, any Subordinated Debentures, or any other securities of the Trust or any other similar debt securities of Dominion which are substantially similar to the Trust Preferred Securities or the Subordinated Debentures, without the prior written consent of the Representatives, other than the offering and sale of the Junior Subordinated Debentures 250,000 8.4% Capital Securities by Dominion Resources Capital Trust III and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectuscorresponding subordinated debentures by Dominion.
(i) The Offerors Dominion will comply with all registrationuse its best efforts to cause the Trust Preferred Securities to be listed on the New York Stock Exchange, filing and reporting requirements subject to official notice of issuance. If the Trust Preferred Securities are exchanged for Subordinated Debentures, Dominion will use its reasonable best efforts to effect the listing of the Exchange Act and Subordinated Debentures on any exchange on which the American Stock ExchangeTrust Preferred Securities are then listed.
Appears in 1 contract
Samples: Underwriting Agreement (Dominion Resources Inc /Va/)
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of 1933 Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing 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 to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purpose1933 Act or the 1934 Act.
(db) The Offerors will furnish the Underwriters with as many Underwrixxxx xxth copies of any each amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of the Preferred Securities in such quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Preferred Securities by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as then amended 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, or if for any other reason it shall be necessary during such period to 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 would include an or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Preferred Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the 1934 Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawRepresentative and Dewey Ballantine LLP.
(fc) The Offerors will endexxxx, xx xxxxxxxxxxx xxxx the Underwriters, to qualify the Preferred Securities and, to the extent required or advisable, the 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 Representative may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the 1933 Act, which are ) covering a twelve-month period beginning not consolidated in later xxan the first day of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply As soon as practicable after the net proceeds from date of this Agreement, and in any event within the sale of time prescribed by Rule 424 under the Junior Subordinated Debentures and 1933 Act, to file the Preferred Securities substantially in accordance Final Supplemented Prospectus with the purposes set forth under "Use Commission and to advise the Representative of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, such filing and reporting requirements of the Exchange Act and the American Stock Exchangeto confirm such advice in writing.
Appears in 1 contract
Covenants of the Offerors. (a) The Offerors jointly and severally covenant and agree with the several Underwriters that:
(ai) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of use their best efforts to cause the Registration Statement in reliance on Rule 430A under the Act, to become effective and will not not, either before or after effectiveness, file any amendment to the Registration Statement 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 Underwriters shall not previously have been advised and furnished with a copy and as or 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 thereunderRules.
(bii) 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 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 Preferred Securities for offering or sale in any jurisdiction, Prospectus or of the institution or threatening of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(ciii) The Offerors will cooperate with you and your counsel the Underwriters in order endeavoring to qualify the Preferred Securities for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Underwriters reasonably may reasonably have designated in writing writing, and to continue will make such qualifications in effect applications, file such documents and furnish such information as may be reasonably required for so long as that purpose; provided, however, the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), PROVIDED that neither Offeror 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 now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports reports, and other documents documents, as are or may be requested by the Underwriters required to continue such qualifications in effect for that purpose.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus so long a period as the Underwriters may reasonably request andfor 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 Prospectus is required under the Act, the Offerors will furnish the Underwriters with Act as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, may reasonably request. The Offerors will deliver to the Underwriters, at or before the Closing Date, two one signed copies copy of the Registration Statement and all amendments thereto 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.
(ev) If, If during the period in which a prospectus Prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which which, in the judgment of the Offerors or in the opinion of counsel for the Underwriters, with the concurrence of the Offerors and its counsel, it becomes necessary to amend or supplement the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if for any other reason it shall be 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 Underwriters' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the 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 not, in light of the circumstances when it is so delivered, not be misleading, or so that the Prospectus will comply with the law.
(fvi) The Offerors will make generally available to their security holdersholders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than 18 months the forty-fifth (45th) day after the effective date fiscal quarter first occurring one year after the Effective Date, a consolidated earnings statement of the Registration Statement, an earnings statement Offerors (which need not be audited) in reasonable detail, detail covering a period of at least 12 twelve (12) consecutive months beginning after the effective date of the Registration StatementEffective Date, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement Statement has been so made available.
(gvii) The Company Offerors will, for five a period of three (3) years from the First Closing Date, deliver to each Underwriter, as soon as they are available, the Underwriters copies of its annual report and copies of all other documents, reports and information furnished by the Company Offerors to its security holders their 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 Company Offerors will deliver to each Underwriter the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the rules and regulations under the ActRules, which are not consolidated in the Company's Offerors' financial statements.
(hviii) As soon as the Offerors are advised thereof, they will advise the Underwriters, and confirm the advice in writing, that the Registration Statement and any amendments shall have become effective.
(ix) The Offerors will apply use the net proceeds from the sale of the Junior Subordinated Debentures Preferred Securities and the Preferred Securities substantially Debentures in accordance with the purposes set 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 Prospectusoffering and sale of the Preferred Securities.
(ixi) The Offerors will comply with all registrationmaintain a transfer agent and, filing and reporting requirements if necessary under the jurisdiction of incorporation of the Exchange Act Offerors, a registrar for the Preferred Securities and will use their best efforts to establish and maintain the listing of the Preferred Securities (and, subject to distribution thereof, the Debentures) on the American Stock Exchange.
(xii) Except as contemplated hereby or by the Prospectus, the Offerors will not, 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 shares of the Preferred Securities or securities convertible into shares of the Preferred Securities without your prior written consent. Furthermore, the Offerors will cause each executive officer and director of the Offerors (as set forth in the Prospectus) to furnish to you, on or prior to the 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, except with your written consent; provided, however, that nothing herein shall prevent such persons from transferring or assigning their shares of the Preferred Securities pursuant to a bona fide gift or pledge transaction. The foregoing covenants and agreements shall apply to any successor of the Offerors, including, without limitation, any entity into which the Offerors might convert or merge.
Appears in 1 contract
Samples: Underwriting Agreement (Abc Bancorp)
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file the Prospectus with the Commission under pursuant to Rule 424(b) 424 under the Securities Act. The Offerors have complied and will comply with Rule 433 under the Securities Act a Prospectus containing information previously omitted at in connection with the time of effectiveness offering and sale of the Registration Statement Preferred Trust Securities, including applicable provisions in reliance on Rule 430A under the Act, and will not file any amendment to the Registration Statement or supplement to the Prospectus respect 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 timely filing with the Act or the rules Commission, legending and regulations thereunderrecord-keeping.
(b) The Offerors will advise the Underwriters promptly of any request prepare a final term sheet, containing a description of the Commission for amendment pricing terms of the Registration Statement or for supplement to Offered Securities, substantially in the Prospectus or for any additional information, or form of the issuance Schedule I hereto and approved by the Representatives and will timely file such term sheet with the Commission of any stop order suspending pursuant to Rule 433 under the 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 for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issuedAct.
(c) The Offerors FPL will cooperate with you deliver or cause to be delivered to the Representatives and your counsel in order to qualify the Preferred Securities Counsel for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing the form as originally filed, including all Incorporated Documents and exhibits, except those incorporated by reference, which relate to continue such qualifications in effect for so long 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 may reasonably request for distribution of through 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 Representatives as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters mayRepresentatives may reasonably request for the purposes contemplated by the Securities Act.
(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, from time 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 time, reasonably request. The Offerors will deliver to the Representatives for the account of the Underwriters, at or before the Closing Datein reasonable quantities, 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 exhibitsany 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 all amendments theretothe Offered Securities. The Offerors shall not, as 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 may agree to pay in any other event and FPL shall reimburse or cause to be reimbursed the Underwriters for out-of-pocket expenses reasonably requestincurred 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) IfDuring a period of nine months after the date of this agreement, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, if any event relating to or affecting either of the Offerors shall occur as which, in the opinion of FPL, should be set forth in a result supplement to or an amendment of which the Prospectus as then amended or supplemented would include (including an untrue statement of a material fact or omit to state any material fact necessary Issuer Free Writing Prospectus) in order to make the statements therein, Prospectus not misleading in the light of the circumstances existing at the time the Prospectus when it is delivered to a purchaser, not misleadingFPL will forthwith at its expense prepare, 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 Commission, if required, and furnish to the Registration Statement Representatives a reasonable number of copies of such supplement or supplements or amendment or amendments to the Prospectus (including an Issuer Free Writing Prospectus) which will supplement to or amend the Prospectus so that the Prospectus as so supplemented or amended or supplemented it will not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein contained therein, in the light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or so that supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date of this agreement, FPL upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus will comply complying with lawSection 10 of the Securities Act.
(f) The Offerors will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Preferred Trust Securities, the Trust Guarantee, and to the extent required or advisable, the other Offered Securities, for offer and sale under the blue sky laws of such United States jurisdictions as the Representatives may designate 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 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 other requirements deemed by either Offeror to be unduly burdensome.
(g) FPL will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited, unless required so to be under Section 11(a) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration StatementSecurities Act) for the purposes of, which earnings statement shall satisfy and to provide the requirements benefits contemplated by, the last paragraph of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange pursuant to the requirements of such exchange or with the Commission pursuant to the Act or the Exchange Securities Act. The Company 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 the Company's financial statements.
(h) Prior to the termination of the offering of the Preferred Trust Securities, the Offerors will not file any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any amendment or supplement to the Pricing Disclosure Package without prior notice to the Representatives and to Hunton & Wxxxxxxx LLP, who are acting as counsel for the several Underwriters (“Counsel for the Underwriters”), or any such amendment or supplement to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the Underwriters. The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and have not made any offer relating to the Preferred Trust Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Offerors with the Commission or retained by the Offerors under Rule 433 under the Securities Act, other than a pricing term sheet substantially in accordance with the purposes form as set forth under "Use of Proceeds" on Schedule I, and will not make any such offer without prior notice to the Representatives and to Counsel for the Underwriters, or any such offer to which the Representatives shall reasonably object in writing, or which shall be unsatisfactory to Counsel for the ProspectusUnderwriters.
(i) The Offerors will advise the Representatives promptly of the filing of the Prospectus pursuant to 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 hereunder, of official notice of the institution of proceedings for, 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 the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 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 registration, filing and reporting requirements applicable securities or blue sky laws of the Exchange Act and various jurisdictions in the American Stock ExchangeUnited States in connection with such distribution. The provisions of this Section 7(h) shall survive the delivery of the Preferred Trust Securities.
Appears in 1 contract
Covenants of the Offerors. The Offerors Offerors, jointly and severally severally, covenant and agree with the several Underwriters that:
(a) The Company and If the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the effective time of effectiveness of the Registration Statement is not prior to the execution and delivery of this Agreement, the Offerors will use its best efforts to 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 on 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 ActAct and, and will if the Underwriters do not file any amendment object to the Registration Statement or supplement to contents thereof, will comply with such Rules. Upon compliance with such Rules, the Prospectus of which Offerors will so advise 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) promptly. The Offerors will advise the Underwriters promptly of any request of the Commission for amendment of the Registration Statement or for supplement and counsel to the Prospectus or for any additional information, or Underwriters promptly of the issuance by the Commission or any state securities commission of any stop order suspending the effectiveness of the Registration Statement or the use of the Prospectusinstitution of any proceedings for that purpose, or of any notification of the suspension of the qualification of the Designated Preferred Securities for offering or sale in any jurisdiction, jurisdiction or of the institution initiation or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(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 also advise the Underwriters 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 counsel to the Underwriters such number promptly of conformed copies any request of the Commission for 16 amendment or supplement of the Registration Statement, without exhibitsof 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 all amendments thereto, as the public offering of the Designated Preferred Securities by the Underwriters may reasonably requestif such 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.
(eb) If, during the period in which at any time when a prospectus relating to the Designated Preferred Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact fact, or would omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if for any other reason it shall be is necessary at any time to amend or supplement the Prospectus to comply with the Act or to file under the Exchange Act any lawdocument which would be deemed to be incorporated by reference in the Registration Statement to comply with the Act or the Exchange Act, the Offerors promptly will advise the Underwriters and counsel to the Underwriters and will promptly prepare and file with the Commission Commission, at its expense, an appropriate amendment to the Registration Statement or supplement file such document which will correct such statement or omission or an amendment which will effect such compliance; and, if any Underwriter is required to the Prospectus so that the Prospectus as so amended or supplemented will not include an untrue statement of deliver a material fact or omit to state any material fact necessary in order to make the statements therein in light of the circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months prospectus after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detailthe Offerors, covering a period of at least 12 consecutive months beginning after the effective date upon request of the Registration StatementUnderwriters, which earnings statement shall satisfy will prepare promptly such prospectus or prospectuses as may be necessary to permit compliance with the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.10(a)(3)
Appears in 1 contract
Covenants of the Offerors. (a) The Offerors jointly and severally covenant and agree with the several Underwriters that:
(ai) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of use its best efforts to cause the Registration Statement in reliance on Rule 430A under the Act, to become effective and will not not, either before or after effectiveness, file any amendment to the Registration Statement 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 Underwriters Representatives shall not previously have been advised and furnished with a copy and as or to which the Underwriters Representatives 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 thereunderRules.
(bii) The Offerors will advise the Underwriters 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 suspending the 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, Prospectus or of the institution or threatening of any proceedings for that purpose, or comparable action taken or initiated by any Other Securities Regulator, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(ciii) The Offerors will cooperate with you and your counsel the Representatives in order endeavoring to qualify the Preferred Securities for sale under the securities laws of such jurisdictions (including foreign jurisdictions) as the Underwriters Representatives reasonably may reasonably have designated in writing writing, and to continue will make such qualifications in effect applications, file such documents and furnish such information as may be reasonably required for so long as that purpose; provided however, the Underwriters may reasonably request for distribution of the Preferred Securities (or obtain exemptions from the application of such laws), PROVIDED that neither Offeror 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 now so qualified or required to file such a consent. The Offerors will, from time to time, prepare and file such statements, reports reports, and other documents documents, as are or may be requested by required to continue such qualifications in effect for so long a period as the Underwriters Representatives may reasonably request for that purposedistribution of the Preferred Securities.
(div) The Offerors will furnish deliver to, or upon the Underwriters with order of, the Representatives, from time to time, as many copies of any Preliminary Prospectus preliminary prospectus as the Underwriters Representatives may reasonably request andrequest. 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 Prospectus is required under the Act, the Offerors will furnish the Underwriters with Act as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time to time, Representatives may reasonably request. The Offerors will deliver to the Underwriters, Representatives at or before the Closing Date, two one signed copies copy of the Registration Statement and all amendments amendments. thereto including all exhibits filed therewith, and will deliver to the Underwriters Representatives such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as the Underwriters Representatives may reasonably request.
(ev) If, If during the period in which a prospectus Prospectus is required by law to be delivered by an Underwriter or dealer, dealer any event shall occur as a result of which which, in the judgment of the Offerors or in the opinion of counsel for the Underwriters, with the concurrence of the Offerors and its counsel, it becomes necessary to amend or supplement the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, or or, if for any other reason it shall be 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 Representatives' prior review, prepare and file with the Commission and any appropriate Other Securities Regulator an appropriate amendment to the 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 not, in light of the circumstances when it is so delivered, not be misleading, or so that the Prospectus will comply with the law.
(fvi) The Offerors will make generally available to their security holdersholders in the manner contemplated by Rule 158(b) under the Act, as soon as it is practicable to do so, but in any event not later than 18 months the forty-fifth day after the effective date fiscal quarter first occurring one year after the Effective Date, a consolidated earnings statement of the Registration Statement, an earnings statement Offerors (which need not be audited) in reasonable detail, detail covering a period of at least 12 twelve consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.Effective
Appears in 1 contract
Samples: Underwriting Agreement (TBC Capital Statutory Trust)
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representative orally of the issuance by the Commission of any stop order suspending under the effectiveness of 1933 Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated sufficient conformed copies of the Registration Statement, the Preliminary Prospectus and Prospectus and of all amendments thereto (in writing each case without exhibits) for distribution to each Underwriter and, from time to time, as many copies of the Preliminary Prospectus and to continue such qualifications in effect for so long Prospectus 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 purposes contemplated by the Underwriters for that purpose1933 Act or the 0000 Xxx.
(db) The Offerors will furnish the Underwriters with as many copies of any each amendment and supplement to the Preliminary Prospectus and Prospectus relating to the offering of the Preferred Securities in such quantities as the Underwriters may from time to time reasonably request andrequest. If, during the period when the 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 shall be required by law to be delivered in connection with the sale of any Preferred Securities by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Preliminary Prospectus or Prospectus, as then amended 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, or if for any other reason it shall be necessary during such period to 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 would include an or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Preliminary Prospectus or Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Preferred Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend the Preliminary Prospectus or supplement Prospectus, complying with Section 10(a) of the Prospectus to comply with any law1933 Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the 1934 Act and the 1934 Act Regulations; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof prior to such filing to the Registration Statement or supplement Underwriters and Xxxxx Xxxxxxxxxx.
(c) The Offerors will endeavor, in cooperation with the Underwriters, to qualify the Preferred Securities and, to the Prospectus extent required or advisable, the 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 Representative may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so that qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Prospectus Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as so amended or supplemented will soon as practicable but not include later than 45 days after the close of the period covered thereby, an untrue earnings statement of a material fact or omit to state any material fact necessary the Company (in order to make form complying with the statements therein in light provisions of Rule 158 of the circumstances when it is so delivered1933 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 Rule 158) of the Registration Statement.
(e) The Offerors will use best efforts to effect the listing of the Preferred Securities on the New York Stock Exchange; if the Preferred Securities are exchanged for Junior Subordinated Notes, not misleading, or so that the Prospectus Company will comply with lawuse its best efforts to effect the listing of the Junior Subordinated Notes on the exchange on which the Preferred Securities were then listed.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering During a period of at least 12 consecutive months beginning after 30 days from the effective date of this Agreement, neither the Registration Statement, which earnings statement shall satisfy Trust nor the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, without the Representative's prior written consent, directly or indirectly, sell, offer to sell, grant any option for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Junior Subordinated Debentures 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 substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectusissued pursuant to this Agreement).
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and Offerors will promptly file the Administrative Trustees on behalf of the Trust will prepare and timely file Prospectus with the Commission under pursuant to Rule 424(b) 424 under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Securities 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 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 FPL will advise deliver to the Representatives and to Counsel for the Underwriters promptly of any request of the Commission for amendment one signed copy of the Registration Statement or for supplement to the Prospectus or for any additional informationor, or of the issuance by the Commission of any stop order suspending the effectiveness 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 the use conformed copy of the Prospectus, of the suspension of the qualification of the Preferred Securities for offering each consent and certificate included therein or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain filed as an exhibit thereto. As soon as possible practicable after the lifting thereofdate of this agreement, if issued.
(c) The Offerors FPL will cooperate with you and your counsel in order deliver 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 continue such qualifications in effect for so long as through 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 Representatives as many copies of the Prospectus in final form, or as thereafter amended or supplemented, as the Underwriters may, from time Representatives may reasonably request for the purposes contemplated by the Securities Act.
(c) FPL will pay or cause to time, reasonably request. The Offerors will deliver to be paid all expenses in connection with the Underwriters, at or before the Closing Date, two signed copies (i) preparation and filing of the Registration Statement and all amendments thereto including all exhibits filed therewithProspectus, (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 will deliver (iii) printing and delivery to the Underwriters such number Representatives for the account of conformed the Underwriters, in reasonable quantities, of copies of the Registration Statement, without exhibitsthe 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 all amendments theretothe Offered Securities. The Offerors shall not, as 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 may agree to pay in any other event and FPL shall reimburse the Underwriters for out-of-pocket expenses reasonably requestincurred by them in connection with the transactions contemplated by this agreement, not in excess, however, of an aggregate of $5,000. 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.
(ed) IfDuring a period of nine months after the date of this agreement, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, if any event relating to or affecting either of the Offerors shall occur as which, in the opinion of FPL, should be set forth in a result supplement to or an amendment of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, Prospectus not misleading in the light of the circumstances existing at the time the Prospectus when it is delivered to a purchaser, not misleading, FPL will forthwith at its expense prepare and furnish to the Representatives a reasonable number of copies of a supplement or if for any other reason it shall be necessary at any time supplements or an amendment or amendments to amend or supplement the Prospectus to comply with any law, the Offerors promptly which will prepare and file with the Commission an appropriate amendment to the Registration Statement supplement or supplement to amend the Prospectus so that the Prospectus as so supplemented or amended or supplemented it will not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein contained therein, in the light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, not misleading; provided that should such event relate solely to activities of any of the Underwriters, then the Underwriters shall assume the expense of preparing and furnishing copies of any such amendment or supplement. In case any Underwriter is required to deliver a Prospectus after the expiration of nine months after the date of this agreement, FPL upon the request of the Representatives will furnish to the Representatives, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended Prospectus or supplements or amendments to the Prospectus complying with Section 10 of the Securities Act.
(e) The Offerors will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying the Preferred Trust Securities, the Trust Guarantee, and to the extent required or advisable, the other Offered Securities, for offer and sale under the blue sky laws of such jurisdictions as the Representatives may designate 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 be required to qualify as a foreign corporation or dealer in securities, or so that to file any consents to service of process under the Prospectus will comply with lawlaws of any jurisdiction, or to meet other requirements deemed by either Offeror to be unduly burdensome.
(f) The Offerors FPL will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited, unless required so to be under Section 11(a) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration StatementSecurities Act) for the purposes of, which earnings statement shall satisfy and to provide the requirements benefits contemplated by, the last paragraph of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made availableSecurities Act.
(g) The Company will, for five years from Offerors will advise the First Closing Date, deliver to each Underwriter, as soon as they are available, copies Representatives promptly of its annual report and copies the filing of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange Prospectus pursuant to the requirements Rule 424 and of such exchange any amendment or with the Commission pursuant supplement to the Act Prospectus or Registration Statement or, prior to the termination of the offering of the Offered Securities hereunder, of official notice of the institution of proceedings for, or the Exchange Act. The Company will deliver entry of, a stop order suspending the effectiveness of the Registration Statement and, if such a stop order should be entered, use every commercially reasonable effort to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in obtain the rules and regulations under the Act, which are not consolidated in the Company's financial statementsprompt removal thereof.
(h) The Offerors will apply the net proceeds from the sale If Subordinated Debentures are distributed to holders of Preferred Trust Securities upon liquidation of the Junior Subordinated Debentures and 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 substantially in accordance with the purposes set forth under "Use of Proceeds" in the ProspectusTrust Securities.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Samples: Underwriting Agreement (Florida Power & Light CO Trust II)
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Underwriters conformed copies of the Registration Statement as originally filed and of all amendments thereto, heretofore or hereafter made, including any post-effective amendment (in reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Representatives orally of the issuance by the Commission of any stop order suspending under the effectiveness of 1933 Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(c) . The Offerors will cooperate with you and your counsel in order deliver to qualify the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated 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 writing 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 to continue such qualifications in effect for so long the Final Supplemented Prospectus 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 purposes contemplated by the Underwriters for that purpose1933 Act or the 1934 Act.
(db) The Offerors will furnish the Underwriters with as many copies copiex xx xxxh amendment and supplement to the Preliminary Supplemented Prospectus and Final Supplemented Prospectus relating to the offering of any Preliminary Prospectus the Preferred Securities in such quantities 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, 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 (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Preferred Securities by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriters, shall occur, which in the opinion of the Company or of Underwriters' counsel should be set forth in a supplement to or an amendment of the Preliminary Supplemented Prospectus or Final Supplemented Prospectus, as then amended 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, or if for any other reason it shall be necessary during such period to 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 would include an or amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Preliminary Supplemented Prospectus or Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Preferred Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the time the Prospectus is delivered to expense of such Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the 1933 Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the 1934 Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawRepresentatives and Dewey Ballantine LLP.
(fc) The Offerors will endeavor, in cxxxxxxxxxx xxxx xxx Xxxxxwriters, to qualify the Preferred Securities and, to the extent required or advisable, the 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 Representatives may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings earning statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the 1933 Act, which are ) covering a twelve-month period beginning not consolidated in later thax xxx xxrst day of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply use best efforts to effect the net proceeds from listing of the sale Preferred Securities on the New York Stock Exchange; if the Preferred Securities are exchanged for Junior Subordinated Notes, the Company will use its best efforts to effect the listing of the Junior Subordinated Debentures Notes on any exchange on which the Preferred Securities 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 substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectusissued pursuant to this Agreement).
(ig) The Offerors will comply As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the 1933 Act, to file the Final Supplemented Prospectus with all registration, the Commission and to advise the Representatives of such filing and reporting requirements of the Exchange Act and the American Stock Exchangeto confirm such advice in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Savannah Electric & Power Co)
Covenants of the Offerors. The Offerors Company and the Trust jointly and severally covenant and agree to the following with each of the several Underwriters thatUnderwriters:
(a) The Company and If the Administrative Trustees Representatives so request, the Offerors, on behalf of or prior to the Trust Closing Date, will prepare and timely file with deliver to the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness Representatives conformed copies of the Registration Statement as originally filed, including all exhibits, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to each such document, in reliance on Rule 430A under each case as soon as available and in such quantities as are reasonably requested by the ActRepresentatives. The Representatives will be deemed to have made such a request for copies for each of the several Underwriters and Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP, and will not file any amendment counsel to the Registration Statement or supplement Underwriters, with respect to any such documents that are not electronically available through 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 thereunderCommission's XXXXX filing system.
(b) The Offerors Company will advise pay all expenses in connection with (i) the Underwriters promptly of any request of the Commission for amendment preparation and filing by it 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 and the Prospectus, (ii) the preparation, issuance and delivery of the suspension Securities, (iii) any fees and expenses of the qualification of Trustees, (iv) the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, printing and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(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 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 Datein reasonable quantities, two signed of copies of the Registration Statement and all amendments thereto including all exhibits the Prospectus (each as originally filed therewithand as subsequently amended), and (v) the fees and expenses incurred in connection with the listing of the Trust Preferred Securities and, if applicable, the Subordinated Debentures, on the New York Stock Exchange. In addition, the Company will deliver pay the reasonable out of pocket fees and disbursements of Underwriters' outside counsel, Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP, in connection with the qualification of the Securities under state securities or blue sky laws or investment laws (if and to the Underwriters extent such number of conformed copies of the Registration Statement, without exhibits, and of all amendments thereto, as qualification is required by the Underwriters may reasonably requestor the Company).
(ec) If, during the period in which time when a prospectus relating to the Securities is required by law to be delivered by an Underwriter or dealerunder the Securities Act, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if for any other reason it shall be is necessary at any time to amend or supplement the Prospectus to comply with any lawthe Securities Act, the Offerors Company promptly will (i) notify the Underwriters to suspend solicitation of purchases of the Trust Preferred Securities and (ii) at its expense, prepare and file with the Commission an appropriate amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. During the period specified above, the Company will continue to prepare and file with the Commission on a timely basis all documents or amendments required under the Securities Exchange Act and the applicable rules and regulations of the Commission thereunder; provided, that the Company shall not file such documents or amendments without also furnishing copies thereof to the Representatives and Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP. Any such documents or amendments which are electronically available through the Commission's XXXXX filing system shall be deemed to have been furnished by the Company to the Representatives and Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP.
(d) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or supplement to the Prospectus so that and will afford the Prospectus as so amended Representatives a reasonable opportunity to comment on any such proposed amendment or supplemented supplement; and the Company will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make also advise the statements therein in light Representatives promptly of the circumstances when it is so deliveredfiling of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, not misleading, or so that the Prospectus will comply with lawif issued.
(fe) The Offerors Company will make generally available to their its security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement of the Company (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning within three months after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act Securities Act.
(f) The Offerors will furnish such proper information as may be lawfully required and Rule 158 thereunder otherwise cooperate in qualifying the Securities for offer and will advise you sale under the securities or blue sky laws of such jurisdictions as the Representatives may designate; provided, however, that the Offerors shall not be required in writing when such statement has been so made availableany state to qualify as a foreign corporation or business entity, or to file a general consent to service of process, or to submit to any requirements which either of them deems unduly burdensome.
(g) The Company willFees and disbursements of Xxxxxxxx Xxxxxxx Xxxx & Valentine LLP, who is acting as counsel for five years from the First Closing DateUnderwriters (exclusive of fees and disbursements of such counsel which are to be paid as set forth in Section 5(b)), deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished shall be paid by the Underwriters; provided, however, that if this Agreement is terminated in accordance with the provisions of Sections 6 or 7 hereof, the Company to its security holders or filed with any securities exchange pursuant to shall reimburse the requirements Representatives for the account of the Underwriters for the amount of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules fees and regulations under the Act, which are not consolidated in the Company's financial statementsdisbursements.
(h) The Offerors During a period of thirty (30) days beginning on the date of this Agreement, the Company and the Trust will apply not offer, sell, contract to sell or otherwise dispose of any Trust Preferred Securities, any other beneficial interest in the net proceeds from the sale assets of the Junior Trust, any Subordinated Debentures and Debentures, or any other securities of the Trust or any other similar debt securities of the Company which are substantially similar to the Trust Preferred Securities substantially in accordance with or the purposes set forth under "Use Subordinated Debentures, without the prior written consent of Proceeds" in the ProspectusRepresentatives.
(i) The Offerors Company will comply with all registrationuse its best efforts to cause the Trust Preferred Securities to be listed on the New York Stock Exchange, filing and reporting requirements subject to official notice of issuance. If the Trust Preferred Securities are exchanged for Subordinated Debentures, the Company will use its reasonable best efforts to effect the listing of the Exchange Act and Subordinated Debentures on any exchange on which the American Stock ExchangeTrust Preferred Securities are then listed.
Appears in 1 contract
Samples: Underwriting Agreement (Consolidated Natural Gas Co/Va)
Covenants of the Offerors. The Each of the Offerors jointly ------------------------- and severally covenant covenants and agree agrees with the several Underwriters that:
(a) The Company and Not later than the Administrative Trustees on behalf of Closing Date, XXXX will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act Representatives a Prospectus containing information previously omitted at the time of effectiveness copy of the Registration Statement in reliance on Rule 430A the form that it became effective under the 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 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 Securities Act or the rules and regulations thereundera conformed copy thereof, certified by an officer of HECO to be in such form.
(b) The 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 Offerors will cause the Prospectus to be transmitted for filing to the Commission pursuant to and in compliance with Rule 424(b) under the Securities Act and will advise the Underwriters Representatives 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 under the effectiveness of Securities Act with respect to 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 for that purpose, and therefor of which either of the Offerors shall have received notice. Each of the Offerors will use their best reasonable efforts to prevent the issuance of any such stop order preventing or suspending the use of the Prospectus or suspending such qualification and to obtain as soon as possible secure the lifting thereof, prompt removal thereof if issued.
(cd) The During such period of time as the Underwriters are required by law to deliver a prospectus relating to any of the Securities, if any event relating to or affecting the Offerors, or of which the Offerors will cooperate with you shall be advised by the Representatives in writing, shall occur that in the opinion of the Representatives and your counsel HECO should be set forth in a supplement or amendment to the Prospectus in order to qualify make the Preferred Securities for sale under Prospectus not misleading in the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution light of the Preferred Securities (circumstances when it is delivered to a purchaser of any of the Securities, or obtain exemptions from the application of such laws), PROVIDED that neither Offeror if it shall be required to qualify as a foreign corporation or to file a general consent to service necessary in the opinion of process in the Representatives and HECO at any jurisdiction where it is not now so qualified or required to file such a consent. The Offerors will, from time to timeamend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act, prepare the Exchange Act or the Trust Indenture Act or, in each case, the rules and file such statements, reports and other documents as may be requested by regulations of 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 ActCommission thereunder, the Offerors will furnish the Underwriters with as many copies of amend or supplement the Prospectus in final formso that, or as thereafter amended or supplemented, as the Underwriters may, from time to time, reasonably request. The Offerors it 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 be delivered by an Underwriter or dealer, not contain any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time when the Prospectus is delivered to a purchaser, not misleading, misleading or if for any other reason it shall be necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with any lawso that, the Offerors promptly will prepare and file with the Commission an appropriate amendment to as amended or supplemented, the 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawsuch requirements.
(e) 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 and Rule 158 under the Securities Act.
(f) The Offerors will make generally available furnish such proper information as may be lawfully required, and will otherwise cooperate with the Underwriters, to their security holdersqualify the Trust Preferred Securities and, if applicable, the Distributable HECO Debentures for offer and sale under the state securities or blue sky laws of such jurisdictions as soon the Representatives may reasonably designate, provided that the Offerors shall not be required to qualify as it is practicable a foreign corporation or dealer in securities or to do sofile any general consents to service of process under the laws of any jurisdiction.
(g) 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, 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) the qualification of the Trust Preferred Securities and, if applicable, the Distributable HECO Debentures under the state securities or blue sky laws of various jurisdictions in accordance with the provisions of Section 6(f) hereof, including the reasonable fees and disbursements of Counsel for the Underwriters in connection therewith and with the preparation of any event not later than 18 months after Blue Sky Survey (and any supplement thereto) relating to any of the effective date Securities up to a maximum of $15,000, (iv) the printing and delivery to the Underwriters of reasonable quantities of copies of the Registration Statement, an earnings statement any Blue Sky Survey (which need not be auditedand any supplement thereto) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date relating to any of the Registration StatementSecurities, which earnings statement any Preliminary Prospectus and the Prospectus and any amendment or supplement thereto, (v) the ratings of the Trust Preferred Securities and, if applicable, the Distributable HECO Debentures by one or more nationally recognized statistical rating agencies, (vi) the listing of the Trust Preferred Securities on the NYSE and, if applicable, the Distributable HECO Debentures on the NYSE, or such other exchange or other organization, and the registration thereof under the Exchange Act in accordance with Section 6(i) hereof 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). If this Underwriting Agreement shall satisfy be terminated in accordance with the requirements provisions of Section 11(a7 (other than paragraph (l) thereof) or 8 hereof, the Obligors will reimburse the Underwriters for all out-of-pocket expenses, including fees and disbursements of Counsel for the Underwriters, reasonably incurred by the Underwriters in contemplation of the Act and Rule 158 thereunder and will advise you performance of this Underwriting Agreement. The Obligors shall not in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange pursuant event be liable to the requirements Underwriters for damages on account of such exchange or with the Commission pursuant to the Act or the Exchange Act. The Company 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 the Company's financial statementsloss of anticipated profits.
(h) The Each of the Offerors will apply 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 net proceeds from the sale assets of the Junior Subordinated Debentures Trust, or any preferred securities or any other securities of the Trust or the 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 Obligors, except for the Securities, without the consent of the Representatives until the earlier to occur of (i) 30 days after the Closing Date and (ii) the date of the termination of the trading restrictions on the Trust Preferred Securities substantially in accordance with Securities, as determined by the purposes set forth under "Use of Proceeds" in the ProspectusUnderwriters.
(i) The Offerors will comply with all registrationuse their best efforts to cause the Trust Preferred Securities to be duly authorized for listing on the NYSE, filing subject to notice of issuance, and reporting requirements to be registered under the Exchange Act; and, upon any distribution of the Distributable HECO Debentures to holders of the Trust Preferred Securities, 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 are then listed, and to have the Distributable HECO Debentures registered under the Exchange Act and the American Stock ExchangeAct.
Appears in 1 contract
Covenants of the Offerors. The Offerors Offerors, jointly and severally severally, ------------------------- covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Act, and Offerors will not file any amendment to the Registration Statement or supplement to the Prospectus of which the Underwriters shall you have not previously have been advised and furnished with a copy and as copy, or to which the Underwriters shall you have reasonably objected in writing promptly after reasonable notice thereof or which is not in compliance with the Act or the rules and regulations thereunderwriting.
(b) The Offerors will advise the Underwriters you promptly of any request of the Commission for an amendment of to the Registration Statement Statement, any Prepricing Prospectus or for supplement to the Prospectus or for any additional information, or information and 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the 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.
(c) The Offerors will cooperate with you and your counsel in order If at any time when, to qualify the knowledge of either of the Offerors, a prospectus relating to the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters 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 is 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 delivered 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 be delivered by an Underwriter or dealer, any event shall occur occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact fact, or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, 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 will promptly will prepare and file with the Commission an appropriate amendment to the 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 circumstances when it is so deliverednotify you thereof and, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any if such event not later than 18 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 Preferred Securities more than nine months after the date of this Agreement, the Offerors will, at the expense of the Underwriter requesting the same, prepare promptly such prospectus or 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 Company will make generally available to its security holders an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, this Agreement which earnings statement shall satisfy the requirements provisions of Section 11(a) of the Act Act.
(e) The Offerors will cooperate with the Underwriters in connection with (i) the qualification of the Registered Securities for sale under the securities laws of such jurisdictions as the Representatives may reasonably designate and Rule 158 thereunder the continuance of such qualifications in effect so long as required for the distribution of the Preferred Securities, 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 service of process or to submit to any requirements which it deems unduly burdensome, and (ii) the determination of the eligibility of the Registered Securities for investment by savings banks, trustees and insurance companies under the laws of such jurisdictions as the Representatives may reasonably designate.
(f) For a period of five years from the date of this Agreement, the Company will, upon request, deliver to 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 copy of each report of the Company mailed to stockholders, and (iv) from time to time such other information concerning the Company as you may reasonably request. For such period the Company will advise you in writing when such statement has been so made deliver to you, upon request, as soon as available, a copy of each report of the Company filed publicly with the Commission.
(g) Whether or not the transactions contemplated hereunder are consummated or this Agreement becomes effective or is terminated, the Company will pay, or reimburse the Underwriters on demand for, all costs and expenses incident to the performance of the Offerors' obligations under this Agreement, including all expenses incident to the preparation, execution and delivery of the trust agreements with respect to the Trust, the Indenture, the Guarantee, the Expense Agreement and the authorization of the Preferred Securities and their issue and delivery by the 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 Act of the Registration Statement, each Prepricing Prospectus, the Prospectus and this Agreement and the listing of the Preferred Securities and, if applicable, the Debentures on The New York Stock Exchange ("NYSE") and the registration thereof under the Securities and Exchange Act of 1934 as amended (the "Exchange Act"), and the Company willwill 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 connection with the qualification of the Registered Securities for five years from sale under state securities laws, the First Closing Datedetermination 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, deliver and the cost of furnishing to each Underwriter, as soon as they are available, the Underwriters copies of its annual report "Blue Sky" memoranda, the Registration Statement, each Prepricing Prospectus and copies of all other documents, reports the Prospectus and information furnished by the Company to its security holders or filed with any securities exchange pursuant (subject to the requirements provisions of such exchange or clause (c) of this Paragraph 5) each amended and supplemented prospectus and each prospectus prepared to permit compliance with Section 10(a)(3) of the Commission pursuant to the Act or the Exchange Act. The Company will deliver shall not, however, be required to each Underwriter similar reports pay for any of the Representatives' expenses or those of any of the other Underwriters other than as hereinabove set forth; provided that, if this Agreement shall not be consummated because terminated by the Representatives pursuant to either Paragraph 6 or clause (c) of the first paragraph of Paragraph 7, or by 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 respect any of the terms hereof on its part to significant subsidiariesbe performed, as that term is defined 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 rules Company shall reimburse the Underwriters a maximum of $40,000 to cover all reasonable out-of-pocket expenses (including fees and regulations under disbursements of counsel) reasonably incurred in connection with marketing the Act, which are Preferred Securities or in contemplation of performing their obligations hereunder; but the Company shall not consolidated in any event be liable to any of the Company's financial statementsUnderwriters for damages on account of loss of anticipated profits from the sale by them of the Preferred Securities.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with for the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements deliver to each Representative (up to a maximum of three) as promptly as practicable a signed copy of the Exchange Act 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 American Stock ExchangeProspectus, 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 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 any such beneficial interest or substantially similar securities, without the consent of the Representatives until the earlier to occur of (i) thirty (30) days after the 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 Date of Delivery.
(k) 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 are then listed, and to have the Debentures registered under the Exchange Act.
Appears in 1 contract
Covenants of the Offerors. The In further consideration of the agreements ------------------------- of the Underwriters herein contained, the Offerors jointly and severally covenant and agree with the several Underwriters thateach Underwriter as follows:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(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 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 To furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request andManager, 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 Datewithout charge, two signed copies of the Registration Statement (including exhibits thereto) and all amendments thereto including all for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits filed therewiththereto) and, and will deliver to during the Underwriters such number of conformed period mentioned in paragraph (c) below, as many copies of the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement, without exhibits, and of all amendments thereto, Statement as the Underwriters Manager may reasonably request.
(eb) Before amending or supplementing the Registration Statement or the Prospectus with respect to the Capital Securities, to furnish to the Manager a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Manager reasonably objects.
(c) If, during such period after the period first date of the public offering of the Capital Securities as in which a prospectus the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time when the Prospectus is delivered to a purchaser, not misleading, or if if, in the opinion of counsel for any other reason the Underwriters, it shall be is necessary at any time to amend or supplement the Prospectus to comply with any applicable law, the Offerors promptly will prepare and forthwith to prepare, file with the Commission an appropriate amendment and furnish, at its own expense, to the Registration Statement 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 supplement supplements to the Prospectus so that the statements in 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 not, in order to make the statements therein in light of the circumstances when it the Prospectus is so delivereddelivered to a purchaser, not misleading, be misleading or so that the Prospectus Prospectus, as amended or supplemented, will comply with law.
(fd) The Offerors will To endeavor to qualify the Capital Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Manager shall reasonably request and to maintain such qualification for as long as the Manager shall reasonably request.
(e) To make generally available to their the Company's security holders, holders and to the Manager as soon as it is practicable to do so, but in any event not later than 18 months an earning statement covering a twelve-month period beginning on the first day of the first full fiscal quarter after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statementthis Agreement, which earnings earning statement shall satisfy the requirements provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and will advise you 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 writing when such statement has been so all other cases shall be made availableavailable not later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting Agreement and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any Capital Securities, any other beneficial interest in the assets of the Trust, or any other securities of the Trust or any other similar trust affiliated with the Guarantor which are substantially similar to the Capital Securities, or any securities convertible into or exchangeable for the Capital Securities, without the prior written consent of the Manager.
(g) The Company willTo use its reasonable efforts to permit the Capital Securities and, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders or filed with any securities exchange pursuant if distributed to the requirements holders of such exchange or with Capital Securities directly, the Commission pursuant Junior Subordinated Debentures to the Act or the Exchange Act. be eligible for clearing through The Company 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 the Depository Trust Company's financial statements.
(h) The Offerors will apply Whether or not the net proceeds from transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the sale performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Junior Subordinated Debentures 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 Preferred 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 preparation, issuance and delivery of the Capital Securities; (iii) the fees, disbursements and expenses of the Offerors' counsel, the 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 substantially under state securities or Blue Sky laws in accordance with the purposes set forth under "Use provisions of Proceeds" Section 6(d), including filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the Prospectus.
preparation of any Blue Sky Memoranda; (iv) The Offerors will comply with all registration, filing the printing and reporting requirements delivery to the Underwriters of copies of any Blue Sky Memoranda; (vi) any fees charged by rating agencies for the rating of the Exchange Act 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 Offerors in connection with a "road show" presentation to 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 American Stock Exchangelast paragraph of Section 8 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Capital Securities by them and any advertising expenses connected with any offers they may make.
Appears in 1 contract
Samples: Underwriting Agreement (Provident Companies Inc /De/)
Covenants of the Offerors. The Offerors jointly and severally ------------------------- covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the Act, and Offerors 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 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 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 Preferred Capital Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(c) The Offerors will cooperate with you the Underwriters and your the Underwriter's counsel in order to qualify the Preferred Capital Securities for sale under the securities laws of such jurisdictions as the Underwriters 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 Capital Securities (or obtain exemptions from the application of such laws), PROVIDED 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 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 be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you the Underwriters in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Capital Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements use their best efforts to maintain the designation of the Exchange Act and Capital Securities on the American Stock ExchangeNasdaq National Market.
Appears in 1 contract
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thatUnderwriter as follows:
(a) The Company and Offerors, on or prior to the Administrative Trustees on behalf of Closing Date, will deliver to the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness 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 reliance on Rule 430A under the Acteach case including all exhibits filed therewith, and will not file any amendment to 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 Registration Statement or supplement to the Prospectus of which the Underwriters shall not previously have been Company is 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 thereof, it 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 Underwriter orally of the issuance by the Commission of any stop order suspending under the effectiveness of Securities Act with respect to the Registration Statement 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 for that purposetherefor, of which the Company shall have received notice, and the Offerors will use their its 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 obtain as soon as possible secure the lifting prompt removal thereof, if issued.
(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 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 Underwriter sufficient conformed copies of the Registration Statement, without exhibits, the Prospectus and the Final Supplemented Prospectus and of all supplements and amendments theretothereto (in each case without exhibits) and, from time to time, as many copies of the Underwriters Prospectus and the Final Supplemented Prospectus as the Underwriter may reasonably requestrequest for the purposes contemplated by the Securities Act or the Exchange Act.
(eb) 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 quantities as the Underwriter may from time to time reasonably request. If, during the period in which (not exceeding nine months) when the delivery of a prospectus is shall be required by law to be delivered in connection with the sale of any Notes by an Underwriter or dealer, any event shall occur as a result relating to or affecting the Company, or of which the Company shall be advised in writing by the Underwriter, shall occur, which in the opinion of the Company or of Underwriter's counsel should be set forth in a supplement to or an amendment 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, or if for any other reason it shall be necessary during such period to 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 then amended supplemented or supplemented would include an amended, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Final Supplemented Prospectus is delivered, not misleading or which will effect any other necessary compliance. 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 Underwriter, at the time expense of the Prospectus is delivered to Underwriter, a purchaser, not misleadingreasonable quantity of a supplemented or amended prospectus, or if for any other reason it shall be necessary at any time supplements or amendments to amend or supplement the Prospectus to comply Final Supplemented Prospectus, complying with any lawSection 10(a) of the Securities Act. During the period specified in the second sentence of this subsection, the Offerors promptly Company will continue to prepare and file with the Commission an appropriate amendment on a timely basis all documents or amendments required under the Exchange Act and the rules 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawUnderwriter and Dewey Ballantine LLP.
(fc) The Offerors will endeavox, xx xxxxxxxxxon with the Underwriter, to qualify the Notes and, to the extent required or advisable, the Notes Guarantee, for offering and sale under the applicable securities laws of such states and the other jurisdictions of the United States as the Underwriter may designate; provided, however, that neither of the Offerors shall be obligated to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to their its security holders, holders as soon as it is practicable to do so, but in any event not later than 18 months 45 days after the effective date close of the Registration Statementperiod covered thereby, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy Company (in form complying with the requirements provisions of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company will deliver to each Underwriter similar reports with respect to significant subsidiaries, as that term is defined in the rules and regulations under the Securities Act, which are ) covering a twelve-month period beginning not consolidated in later than the first day of the Company's financial statementsfiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(he) The Offerors will apply the net proceeds During a period of 15 days from the date of this Agreement, neither SoCo Capital nor the Company will, without the Underwriter's prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of of, or otherwise dispose of, any Notes, any security convertible into or exchangeable into or exercisable for the Junior Subordinated Debentures Notes or any debt securities substantially similar to the Notes (except for the Notes issued pursuant to this Agreement and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the ProspectusSeries A 5.30% Senior Notes due February 1, 2007).
(if) The Offerors As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424 under the Securities Act, the Company will comply file the Final Supplemented Prospectus with all registration, the Commission and will advise the Underwriter of such filing and reporting requirements of the Exchange Act and the American Stock Exchangewill confirm such advice in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Southern Co)
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(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 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 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 be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock ExchangeNasdaq National Market.
Appears in 1 contract
Samples: Underwriting Agreement (Team Financial Capital Trust I)
Covenants of the Offerors. The Each of the Offerors jointly and ------------------------- severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of use their best efforts to cause the Registration Statement in reliance on to become effective as and when requested by the Underwriter, and if the Offerors elects to rely upon Rule 430A under and subject to Section 3(b), will comply with the Actrequirements of Rule 430A and will notify the Underwriter immediately, and will not file confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the 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 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 any amendment or which is not in compliance with the Act or the rules and regulations thereunder.
(b) 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 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 the Prospectusany preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of or the institution initiation or threatening of any proceedings for that purpose, and the any of such purposes. The Offerors will use their best efforts make every reasonable effort to prevent the issuance of any such stop order preventing and, if any stop order is issued, to obtain the lifting thereof at the earliest reasonable moment.
(b) The Offerors will give the Underwriter notice of their intention to file or suspending prepare any amendment to the Registration Statement (including any post- effective amendment) or any amendment or supplement to the Prospectus (including any 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 suspending not such qualification 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 case may be, and will not file any such amendment or supplement or use any such prospectus to obtain as soon as possible which the lifting thereof, if issuedUnderwriter or counsel for the Underwriter shall object.
(c) The Offerors have furnished or will cooperate with you deliver to the Underwriter and your counsel in order to qualify for the Preferred Securities for sale under the securities laws of such jurisdictions as the Underwriters may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution Underwriter, without charge, copies of the Preferred Securities Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or obtain exemptions from incorporated by reference therein) and copies of all consents and the application certificate of such laws)experts, PROVIDED that neither Offeror shall be required and will also deliver to qualify the Underwriter a conformed copy of the Registration Statement as a foreign corporation or to file a general consent to service originally filed and 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 each amendment thereto (without exhibits) for the Underwriters for that purposeUnderwriter.
(d) The Offerors will furnish deliver to the Underwriters with 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 time the Pricing Agreement is executed and delivered), as many copies of any Preliminary Prospectus each preliminary prospectus as the Underwriters Underwriter may reasonably request andrequest, 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 delivery of a prospectus the Prospectus is required to be delivered under the 1933 Act or the Securities Reorganization Act of 1934 (the "1934 Act"), the Offerors will furnish the Underwriters with as many such number -------- of copies of the Prospectus in final form, or (as thereafter amended or supplemented, ) as the Underwriters may, from time to time, Underwriter may reasonably request. The Offerors will deliver to request for the Underwriters, at purposes contemplated by the 1933 Act or before the Closing Date, two signed copies 1934 Act or the respective applicable rules and regulations 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 requestCommission thereunder.
(e) If, during the period in which a prospectus is required by law to be delivered by an Underwriter or dealer, If any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriter or for the Company, to amend the Registration Statement or amend or supplement the Prospectus as then amended or supplemented would in order that the Prospectus will not include an any untrue statement statements of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 not misleading in the light of the circumstances when existing at the time it is so delivered, not misleadingdelivered to a purchaser, or so that if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus will in order to comply with lawthe requirements of the 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 Underwriter such number of copies of such amendment or supplement as the Underwriter may reasonably request.
(f) 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 make generally available use their best efforts, in cooperation with the Underwriter, to their security holders, qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as soon as it is practicable the Underwriter may designate and to do so, but maintain such qualifications in any event effect for a period of not later less than 18 months after one year from the effective date of the Registration Statement; provided, an earnings statement (which need not be audited) in reasonable detailhowever, covering a period of at least 12 consecutive months beginning after the effective date that neither of the Registration StatementOfferors 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, which earnings statement shall satisfy the requirements Offerors will file such statements and reports as may be required by the laws of Section 11(a) such jurisdiction to continue such qualification in effect for as long as may be required for the distribution of the Act and Rule 158 thereunder and will advise you Securities or, in writing when the case of such statement has been so made available.
(g) The Company willJunior Subordinated Debentures, for five years from the First Closing Date, deliver to each Underwriter, as soon long as they such Junior Subordinated Debentures are available, copies of its annual report and copies of all other documents, reports and information furnished issuable as contemplated by the Company to its security holders or filed with any securities exchange pursuant to Prospectus or, in the requirements case of such exchange or with the Commission pursuant to the Act or the Exchange Actshares of Common Stock issuable upon conversion of Securities and Junior Subordinated Debentures, for so long as is required by applicable law. The Company Offerors will deliver to each promptly advise the Underwriter similar reports of the receipt by either of the Offerors of any notification with respect to significant subsidiariesthe suspension of the qualification of the Registered Securities for sale or issuance, as that term is defined the case may be, in any such state or jurisdiction or the rules and regulations under the Act, which are not consolidated in the Company's financial statementsinitiating or threatening of any proceedings for such purpose.
(h) The Offerors will apply the net proceeds from the sale Company will, on behalf of the Junior Subordinated Debentures and Trust, make generally available to the Preferred Securities substantially Trust's security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in accordance form complying with the purposes set forth under 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 "Use effective date" (as defined in said Rule 158) of Proceeds" in the ProspectusRegistration Statement.
(i) The Offerors will comply with all registration, filing and reporting requirements use the net proceeds received by it from the sale of the Exchange Act Securities and the American 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 sell, pledge or hypothecate, grant any option for the 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 Exchangeissuable 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 settled by delivery of such securities, in cash or otherwise. The Offerors consent to the entry by the Underwriter of stop-transfer orders with the Offeror's transfer agent if, in the Underwriter's sole discretion, a stop order is necessary to prevent violation of this subparagraph. The foregoing restrictions are expressly agreed to preclude the Offerors and the Bank from engaging in any hedging, pledge or other 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 Form SR as may be required pursuant to Rule 463 of the 1933 Act Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Life Financial Capital Trust)
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that------------------------- each Underwriter as follows:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors, subject to Section 3(b) hereof, will prepare and timely file comply with the Commission under requirements of Rule 424(b434, as applicable, and will notify the Representatives immediately, and confirm the notice in writing, (i) under the Act a Prospectus containing information previously omitted at the time of effectiveness of when any post-effective amendment to the Registration Statement in reliance on Rule 430A under shall become effective, or any supplement to the ActProspectus or any amended Prospectus shall have been filed, and will not file (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 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 any amendment or which is not in compliance with the Act or the rules and regulations thereunder.
(b) 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 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 the Prospectusany preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution initiation or threatening of any proceedings for that purpose, and the any of such purposes. The Offerors will use their best efforts 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 event that it was not, they will promptly file such prospectus. The Offerors will make every reasonable effort to prevent the issuance of any such stop order preventing and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will give the Representatives notice of its intention to file or suspending prepare any amendment to the 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 any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document without the consent of the Prospectus or suspending such qualification and to obtain as soon as possible the lifting thereofRepresentatives, if issuedwhich consent shall not be unreasonably withheld.
(c) The Offerors have furnished or will cooperate with you deliver to the Representatives and your counsel in order 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 qualify be incorporated by reference therein) and photocopies of all consents and certificates of experts, and will also deliver to the Preferred Securities Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for sale under each of the securities laws Underwriters. The copies of such jurisdictions as the Registration Statement and each amendment thereto furnished to the Underwriters may reasonably have designated in writing and will be identical to continue such qualifications in effect for so long as the Underwriters may reasonably request for distribution of electronically transmitted copies thereof filed with the Preferred Securities (or obtain exemptions from Commission pursuant to EDGAR, except to 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 extent permitted by the Underwriters for that purpose.Regulatixx X-T.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request andto each Underwriter, without charge, during the period when delivery of a prospectus the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, the Offerors will furnish the Underwriters with as many such number of copies of the Prospectus in final form, or (as thereafter amended or supplemented, ) as the Underwriters may, from time to time, such Underwriter may reasonably request. The Offerors will deliver to the Underwriters, at Prospectus and any amendments or before the Closing Date, two signed copies of the Registration Statement and all amendments supplements thereto including all exhibits filed therewith, and will deliver furnished to the Underwriters such number of conformed will be identical to the electronically transmitted copies of thereof filed with the Registration StatementCommission pursuant to EDGAR, without exhibits, and of all amendments thereto, as except to the Underwriters may reasonably request.extent permitted by Regulatxxx X-T.
(e) IfThe Offerors will comply with the 1933 Act, during the period 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 which this Agreement and in the Prospectus. If at any time when a prospectus is required by law the 1933 Act to be delivered by an Underwriter or dealerin connection with sales of the Capital Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus as then amended or supplemented would in order that the Prospectus will not include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 not misleading in the light of the circumstances when existing at the time it is so delivered, not misleadingdelivered to a purchaser, or so that if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus will in order to comply with lawthe requirements of the 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 copies of such amendment or supplement as the Underwriters may reasonably request.
(f) The Offerors will make generally available use their best efforts, in cooperation with the Underwriters, to their security holders, qualify the Capital Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as soon as it is practicable the Representatives may designate and to do so, but maintain such qualifications in any event effect for a period of not less than one year from the later than 18 months after of the effective date of the Registration Statement and any Rule 462(b) Registration Statement; provided, an earnings statement (which need however, that the Offerors shall not be audited) obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in reasonable detailsecurities 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, covering 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 a period of at least 12 consecutive months beginning after not less than one year from the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act Statement and any Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.462(b)
Appears in 1 contract
Covenants of the Offerors. The Each of the Offerors jointly and severally covenant and agree covenants with the several Underwriters thateach Underwriter as follows:
(a) The Company During the period beginning on the Applicable Time and ending on the Administrative Trustees on behalf later of the Trust Closing Date 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 prepare notify the Representative promptly, and timely file with confirm the Commission under Rule 424(bnotice in writing, (i) under of the Act a Prospectus containing information previously omitted at the time of 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 reliance on Rule 430A under [the Actpreliminary 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 Registration Statement[, the preliminary prospectus] and will not file the Prospectus), (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment 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 Disclosure Package or which is not in compliance with the Act or the rules and regulations thereunder.
(b) 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 informationinformation relating thereto (other than such a request with respect to a document filed with the Commission pursuant to the Exchange Act which will be incorporated by reference in the Registration Statement[, or the preliminary prospectus] and the Prospectus), and (v) 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening initiation of any proceedings for that purpose, and the . The Offerors will use their best efforts make every reasonable effort to prevent the issuance of any such stop order preventing or suspending and, if any stop order is issued, to obtain the use lifting thereof at the earliest possible moment.
(b) Prior to the termination of the offering of the Capital Securities, the Offerors (1) will 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 suspending non-compliance that is the subject of a notice delivered to the Underwriters pursuant to paragraph (e) below (a “Periodic Filing”)), or (ii) any amendment or supplement to the Disclosure Package or the Prospectus (including any 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 not such qualification 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 obtain as soon as possible which the lifting thereofUnderwriters or counsel for the Underwriters shall reasonably object 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, if issuedthe 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 Offerors will cooperate with you deliver to the Representative as many signed copies of the Registration Statement as originally filed and your counsel in order of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to qualify the Preferred Securities for sale under the securities laws of such jurisdictions be incorporated by reference therein) as the Underwriters may reasonably have designated in writing and to continue such qualifications in effect for so long as the Underwriters Representative may reasonably request for distribution and will also deliver to the Representative a conformed copy of the Preferred Securities Registration Statement as originally filed and of each amendment thereto (or obtain exemptions from without exhibits) for each of 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 purposeUnderwriters.
(d) The Offerors will furnish the Underwriters with as many copies of any Preliminary Prospectus as the Underwriters may reasonably request andto each Underwriter, from time to time during the period when delivery of a prospectus the Prospectus is required to be delivered under the Securities Act, the Offerors will furnish the Underwriters with as many such number of 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 Underwriter may reasonably requestrequest for the purposes contemplated by the Securities Act.
(e) If, during If at any time when the period in which a prospectus Prospectus is required by law the Securities Act to be delivered by in connection with sales of the Capital Securities, except with respect to any such delivery requirement imposed upon an Underwriter or dealeraffiliate of the Offerors in connection with any secondary market sales, any event shall occur as a result of which the Disclosure Package or the Prospectus as then amended or supplemented would will include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if for any other reason it shall be necessary at any time to amend or supplement the Disclosure Package or the Prospectus in order to comply with any lawthe requirements of the Securities Act, the Offerors will, subject to paragraph (b) above, promptly will prepare and file with the Commission such amendment or supplement which will correct such statement or omission or an appropriate 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 Registration Statement or supplement Underwriters to cease the solicitation of offers to purchase the Capital Securities, and furnish to the Prospectus so that the Prospectus as so amended Underwriters a reasonable number of copies of such amendment 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with lawsupplement.
(f) 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 make generally available to their its security holders, holders and to the Underwriters as soon as it is practicable to do sopracticable, but in any event not later than 18 months 90 days after the effective date close of the Registration Statementperiod covered thereby, an earnings statement (which need not be audited) in reasonable detailof the Company and its subsidiaries, covering an applicable period beginning not later than the first day of the Company’s fiscal quarter next following the “Effective Date” (as defined in Rule 158(c) under the Securities Act) of the Registration Statement, which will satisfy the provisions of Section 11(a) of the Securities 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.
(j) Until the business day following the Closing Date, neither the Company nor the Trust will, without the consent of the Representative, 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 period 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 at least 12 consecutive months beginning after 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 prepare 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 file such term sheet pursuant to Rule 433(d) under the 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 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 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 prior written consent of the Representative shall be deemed to 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 “Permitted Free Writing Prospectus.” The Offerors agree that (i) they have treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, 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 Registration Statement, any of the Capital Securities remain unsold by the Underwriters, the Company and the Trust will prior to the 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 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 continue as contemplated in the expired 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, 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 Rule 401(g)(2) or the Company otherwise ceases to be eligible to use the automatic 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 cause such registration statement of post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. 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 continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which earnings the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement shall satisfy or post-effective amendment, as the requirements of Section 11(acase may be.
(n) The Company agrees to pay the required Commission filing fees relating to the Capital Securities within the time required by Rule 456(b)(1) of the Securities Act without regard to the proviso therein and Rule 158 thereunder otherwise in accordance with Rules 456(b) and will advise you in writing when such statement has been so made available457(r) of the Securities Act.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(ho) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and Capital Securities sold by them in the Preferred Securities substantially in accordance with manner described under the purposes set forth under "caption “Use of Proceeds" ” in each of [the preliminary prospectus and] the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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) If the Offerors elect to rely on Rule 434 of the Act, the Offerors will 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 with copies of the 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 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 Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(cd) 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 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.
(de) 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 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.
(ef) If, during the period in which If at any time when a prospectus relating to the Preferred Securities is required by law to be delivered by an Underwriter or dealer, under the Act any event shall occur occurs as a result of which the Prospectus as then amended Prospectus, including any amendments or supplemented supplements, would include an untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing at the time the Prospectus is delivered to a purchaserunder which they were made, not misleading, or if for any other reason it shall be is necessary at any time to amend the Prospectus, including any amendments or supplement supplements thereto and including any revised prospectus which the Prospectus Offerors propose for use by the Underwriters in connection with the offering of the Preferred Securities which differs from the prospectus on file with the Commission at the time of effectiveness of the Registration Statement, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) to comply with any lawthe Act, the Offerors promptly will advise you thereof and will promptly prepare and file with the Commission an appropriate amendment to the Registration Statement or supplement which will correct such statement or omission or an amendment which will effect such compliance; and, in case any Underwriter is required to the Prospectus so that the Prospectus as so amended deliver a prospectus nine months 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months more after the effective date of the Registration Statement, an earnings statement (which need not the Offerors upon request, but at the expense of such Underwriter, will prepare promptly such prospectus or prospectuses as may be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy necessary to permit compliance with the requirements of Section 11(a10(a)(3) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made availableAct.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements of the Exchange Act and the American Stock Exchange.
Appears in 1 contract
Samples: Underwriting Agreement (First Busey Capital Trust I)
Covenants of the Offerors. The Offerors jointly and severally covenant and agree with the several Underwriters that:
(a) The Company and the Administrative Trustees on behalf of the Trust Offerors will prepare and timely file with the Commission under Rule 424(b) under the Act a Prospectus containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on Rule 430A under the 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 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 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 Preferred Capital Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for that purpose, and the Offerors will use 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 obtain as soon as possible the lifting thereof, if issued.
(c) The Offerors will cooperate with you and your counsel in order to qualify the Preferred Capital Securities for sale under the securities laws of such jurisdictions as the Underwriters 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 Capital Securities (or obtain exemptions from the application of such laws), PROVIDED 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 and file such statements, reports and other documents as may be requested by the Underwriters for that purpose.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 be delivered by an Underwriter or dealer, any event shall occur as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, not misleading, 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 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 circumstances when it is so delivered, not misleading, or so that the Prospectus will comply with law.
(f) The Offerors will make generally available to their security holders, as soon as it is practicable to do so, but in any event not later than 18 months after the effective date of the Registration Statement, an earnings statement (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Act and Rule 158 thereunder and will advise you in writing when such statement has been so made available.
(g) The Company will, for five years from the First Closing Date, deliver to each Underwriter, as soon as they are available, copies of its annual report and copies of all other documents, reports and information furnished by the Company to its security holders 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. The Company 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 the Company's financial statements.
(h) The Offerors will apply the net proceeds from the sale of the Junior Subordinated Debentures and the Preferred Capital Securities substantially in accordance with the purposes set forth under "Use of Proceeds" in the Prospectus.
(i) The Offerors will comply with all registration, filing and reporting requirements use its best efforts to maintain the designation of the Exchange Act and Capital Securities on the American Stock ExchangeNasdaq National Market.
Appears in 1 contract
