Covenants of the Offerors. Each of the Trust and the Company covenants with the Underwriter as follows: a. or any amendment or supplement to the Prospectus or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for such purpose. The Trust and the Company will make every reasonable effort to prevent the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. b. The Trust and the Company will deliver to the Underwriter notice of their intention to prepare or file any amendment to the Registration Statement relating to the Preferred Securities (including any post-effective amendment) or any amendment or supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus and including any revised prospectus which the Trust and the Company propose for use by the Underwriter in connection with the offering of the Preferred Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Underwriter and counsel for 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 which the Underwriter or counsel for the Underwriter shall reasonably object. c. The Trust and the Company will deliver to the Underwriter one manually executed copy of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference into the Prospectus), such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits) as such Underwriter may reasonably request and copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus. d. The Trust and the Company will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented, if applicable) as you may reasonably request for the 13 - 13 - purposes contemplated by the Securities Act or the Securities Act Regulations. e. If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Trust and the Company will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment of or supplement to the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading. f. The Trust and 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 Section 13, 14 or 15 of the Exchange Act subsequent to the time the Registration Statement becomes effective. g. Both the Trust and the Company will endeavor, in cooperation with the Underwriter, to qualify the Preferred Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securities, except that neither the Trust nor the Company shall be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or other jurisdiction. The Trust and the Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided. h. The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 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 on the first day of the first full fiscal quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and will advise you in writing when such statement has been so made available. If such fiscal quarter is the last fiscal quarter of the Trust's fiscal year, such 14 - 14 - earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby. i. The Trust and the Company will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Preferred Securities. j. The Trust and the Company, from the date hereof until the Closing Date (including any Option Closing Date), will not offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that in the reasonable judgment of the Underwriter are substantially similar to the Preferred Securities, without the prior written consent of the Underwriter. k. For a period of five years (but not beyond any such date on which no Securities shall be outstanding) after the Closing Date, the Trust and the Company will furnish to the Underwriter copies of all reports and communications delivered to the Trust's shareholders or to holders of the Preferred Securities and will also furnish copies of all reports (excluding exhibits) filed with the Commission on Forms 8-K, 10-Q and 10-K, and all other reports and information furnished to its shareholders generally, not later than the time such reports are first furnished to its shareholders generally. l. The Trust shall apply the net proceeds of its sale of the Preferred Securities, combined with the entire proceeds from the sale by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of the Subordinated Debentures. All the net proceeds to be received by the Company from the sale of the Subordinated Debentures will be used for general corporate purposes, as described more fully in the Prospectus. m. Neither the Company nor the Trust shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriter.
Appears in 2 contracts
Samples: Underwriting Agreement (National Penn Bancshares Inc), Underwriting Agreement (National Penn Bancshares Inc)
Covenants of the Offerors. Each of the Trust and the Company covenants The Offerors agree with the each Underwriter as follows:
a. (a) Promptly following the execution of this Agreement, the Offerors will cause the Prospectus, including as a part thereof a prospectus supplement relating to the Securities, to be filed with the Commission pursuant to Rule 424 of the 1933 Act Regulations and the Offerors will promptly advise the Underwriters when such filing has been made. Prior to the filing, the Offerors will cooperate with the Underwriters in the preparation of such prospectus supplement to assure that the Underwriters have no reasonable objection to the form or content thereof when filed or mailed.
(b) The Offerors will comply with the requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and as applicable, and will notify the Underwriters immediately, and confirm the notice in writing, (i) of the effectiveness of any post- effective amendment 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 additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and (v) of the issuance by any state securities commission or other regulatory authority of any order preventing or suspending the use of any Preliminary Prospectus qualification or the Prospectus, of the suspension of the exemption from qualification of the Securities under state securities for offering or sale in any jurisdiction, Blue Sky laws or of the initiation or threatening of any proceeding for such purpose. The Trust and the Company Offerors will make every reasonable effort to prevent the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
b. (c) The Trust and the Company will deliver to give the Underwriter Underwriters notice of their its intention to file or prepare or file any amendment to the Registration Statement relating to the Preferred Securities (including any post-effective amendment) or amendment and any amendment or supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus and including any revised prospectus which the Trust and the Company propose for use by the Underwriter in connection with the offering of the Preferred Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to filing under Rule 424(b462(b) of the Securities 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 Underwriter and counsel for the Underwriter Underwriters with copies of any such amendment Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or supplement revision 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 Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or use any such prospectus revision to which the Underwriter Underwriters or counsel for the Underwriter Underwriters shall reasonably object.
c. (d) The Trust and the Company will deliver to Xxxxxxx Xxxxx and counsel for the Underwriter one manually executed copy Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference into the Prospectus)therein) and signed copies of all consents and certificates of experts and will also deliver to Xxxxxxx Xxxxx, such number of without charge, a conformed copies copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits) for each of the Underwriters. If applicable, the copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter may reasonably request and copies of each Preliminary Prospectusrequest, the Prospectus and any amended or supplemented Prospectus.
d. The Trust and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to the each Underwriter, from time to time without charge, during the period when the Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented, if applicable) as you such Underwriter may reasonably request for request. If applicable, the 13 - 13 - purposes Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement and the Prospectus. If at any time when the Prospectus is required by the Securities 1933 Act or the Securities 1934 Act Regulations.
e. If to be delivered in connection with sales of the 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 UnderwriterUnderwriters or 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 a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Trust and the Company will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment of or supplement to the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, that the Prospectus will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleadingor 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 in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and file with the Commission, subject to 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, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f. (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 Xxxxxxx Xxxxx 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, to execute or file any general consent to service of process under laws of any jurisdiction 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 Company 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.
(h) The Company will, on behalf of the Trust, make generally available to the Trust's 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, a consolidated earnings statement of the Company (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 Trust 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 the Offerors elect to rely upon Rule 462(b), the Offerors shall both 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).
(k) The Company, during the period when the Prospectus is required to be delivered under the Securities 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange 1934 Act subsequent to within the time periods required by the Registration Statement becomes effective1934 Act and the 1934 Act Regulations.
g. Both (l) The Offerors will use their best efforts to effect the Trust listing of the Preferred Securities (including the Preferred Securities Guarantee with respect thereto) on the New York Stock Exchange and to cause the Securities to be registered under the 1934 Act. If the Preferred Securities are exchanged for Subordinated Debt Securities, the Company will endeavor, in cooperation with use its best efforts to effect the Underwriter, to qualify listing of the Subordinated Debt Securities on the exchange on which the Preferred Securities for offering were then listed and sale to cause the Subordinated Debt Securities to be registered under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate1934 Act.
(m) Until _______, and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securities____, except that neither the Trust nor the Company shall be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or other jurisdiction. The Trust and the Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
h. The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 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 on the first day of the first full fiscal quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and will advise you in writing when such statement has been so made available. If such fiscal quarter is the last fiscal quarter of the Trust's fiscal year, such 14 - 14 - earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
i. The Trust and the Company will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Preferred Securities.
j. The Trust and the Company, from the date hereof until the Closing Date (including any Option Closing Date), will not offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that in the reasonable judgment of the Underwriter are substantially similar to the Preferred Securitieswill, without the prior written consent of the UnderwriterUnderwriters, (i) directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, or enter into any agreement to sell, any Preferred Securities, any security convertible into or exchangeable or exercisable for Preferred Securities, or any equity securities substantially similar to the Preferred Securities or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities in cash or otherwise (except the Subordinated Debt Securities and the Preferred Securities issued pursuant to this Agreement).
k. For (n) During a period of five three years (but not beyond any such date on which no Securities shall be outstanding) after from the Closing DateTime, the Trust and the Company will furnish make generally available to the Underwriter Underwriters copies of all reports and other communications delivered (financial or other) mailed to stockholders, and to deliver to the Trust's shareholders or to holders of the Preferred Securities and will also furnish Underwriters promptly after they are available, copies of all any reports (excluding exhibits) and financial statements furnished to or filed with the Commission or any national securities exchange on Forms 8-K, 10-Q which any class of securities of the Company is listed; and 10-K, shall furnish such additional information concerning the business and all other financial condition of the Company as the Underwriters may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports and information furnished to its shareholders generally, not later than the time such reports are first furnished to its shareholders generally.
l. The Trust shall apply the net proceeds of its sale of the Preferred Securities, combined with the entire proceeds from the sale by the Trust stockholders generally or to the Company of the Trust's Common Securities, to purchase an equivalent amount of the Subordinated Debentures. All the net proceeds to be received by the Company from the sale of the Subordinated Debentures will be used for general corporate purposes, as described more fully in the ProspectusCommission).
m. Neither the Company nor the Trust shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriter.
Appears in 1 contract
Covenants of the Offerors. Each of the Trust and the Company covenants The Offerors agree with the each Underwriter as follows:
a. (a) Promptly following the execution of this Agreement, the Offerors will cause the Prospectus, including as a part thereof a prospectus supplement relating to the Securities, to be filed with the Commission pursuant to Rule 424 of the 1933 Act Regulations and the Offerors will promptly advise the Underwriters when such filing has been made. Prior to the filing, the Offerors will cooperate with the Underwriters in the preparation of such prospectus supplement to assure that the Underwriters have no reasonable objection to the form or content thereof when filed or mailed.
(b) The Offerors will comply with the requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and as applicable, and will notify the Underwriters immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment 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 additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and (v) of the issuance by any state securities commission or other regulatory authority of any order preventing or suspending the use of any Preliminary Prospectus qualification or the Prospectus, of the suspension of the exemption from qualification of the Securities under state securities for offering or sale in any jurisdiction, Blue Sky laws or of the initiation or threatening of any proceeding for such purpose. The Trust and the Company Offerors will make every reasonable effort to prevent the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
b. (c) The Trust and the Company will deliver to give the Underwriter Underwriters notice of their its intention to file or prepare or file any amendment to the Registration Statement relating to the Preferred Securities (including any post-effective amendmentamendment and any filing under Rule 462(b) of the 1933 Act Regulations) any Term Sheet or any amendment amendment, supplement or supplement revision to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus and including any revised prospectus which the Trust and the Company propose for use by the Underwriter in connection with the offering of the Preferred Securities which differs from either the prospectus on file at included in the Commission Registration Statement at the time it became effective or to the Registration Statement becomes effectiveProspectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities 1933 Act, the 1934 Act Regulations), or otherwise; will furnish the Underwriter and counsel for the Underwriter Underwriters with copies of any such amendment Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or supplement revision 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 Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or use any such prospectus revision to which the Underwriter Underwriters or counsel for the Underwriter Underwriters shall reasonably object.
c. (d) The Trust and the Company will deliver to Xxxxxxx Xxxxx and counsel for the Underwriter one manually executed copy Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference into the Prospectus)therein) and signed copies of all consents and certificates of experts and will also deliver to Xxxxxxx Xxxxx, such number of without charge, a conformed copies copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits) for each of the Underwriters. If applicable, the copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter may reasonably request and copies of each Preliminary Prospectusrequest, the Prospectus and any amended or supplemented Prospectus.
d. The Trust and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to the each Underwriter, from time to time without charge, during the period when the Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented, if applicable) as you such Underwriter may reasonably request for request. If applicable, the 13 - 13 - purposes Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement and the Prospectus. If at any time when the Prospectus is required by the Securities 1933 Act or the Securities 1934 Act Regulations.
e. If to be delivered in connection with sales of the 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 UnderwriterUnderwriters or 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 a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Trust and the Company will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment of or supplement to the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, that the Prospectus will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleadingor 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 in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and file with the Commission, subject to 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, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f. (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 Xxxxxxx Xxxxx 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 Company 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.
(h) The Company will, on behalf of the Trust, make generally available to the Trust's 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, a consolidated earnings statement of the Company (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 Trust 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 the Offerors elect to rely upon Rule 462(b), the Offerors shall both 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).
(k) The Company, during the period when the Prospectus is required to be delivered under the Securities 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange 1934 Act subsequent to within the time periods required by the Registration Statement becomes effective1934 Act and the 1934 Act Regulations.
g. Both (l) The Offerors will use their best efforts to effect the Trust listing of the Preferred Securities (including the Preferred Securities Guarantee with respect thereto) on the New York Stock Exchange and to cause the Securities to be registered under the 1934 Act. If the Preferred Securities are exchanged for Subordinated Debt Securities, the Company will endeavor, in cooperation with use its best efforts to effect the Underwriter, to qualify listing of the Subordinated Debt Securities on the exchange on which the Preferred Securities for offering were then listed and sale to cause the Subordinated Debt Securities to be registered under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate1934 Act.
(m) Until March 2, and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securities1997, except that neither the Trust nor the Company shall be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or other jurisdiction. The Trust and the Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
h. The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 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 on the first day of the first full fiscal quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and will advise you in writing when such statement has been so made available. If such fiscal quarter is the last fiscal quarter of the Trust's fiscal year, such 14 - 14 - earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
i. The Trust and the Company will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Preferred Securities.
j. The Trust and the Company, from the date hereof until the Closing Date (including any Option Closing Date), will not offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that in the reasonable judgment of the Underwriter are substantially similar to the Preferred Securitieswill, without the prior written consent of the UnderwriterUnderwriters, (i) directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, or enter into any agreement to sell, any Preferred Securities, any security convertible into or exchangeable or exercisable for Preferred Securities, or any equity securities substantially similar to the Preferred Securities or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is settled by delivery of Common Stock or such other securities in cash or otherwise (except the Subordinated Debt Securities and the Preferred Securities issued pursuant to this Agreement).
k. For (n) During a period of five three years (but not beyond any such date on which no Securities shall be outstanding) after from the Closing DateTime, the Trust and the Company will furnish make generally available to the Underwriter Underwriters copies of all reports and other communications delivered (financial or other) mailed to stockholders, and to deliver to the Trust's shareholders or to holders of the Preferred Securities and will also furnish Underwriters promptly after they are available, copies of all any reports (excluding exhibits) and financial statements furnished to or filed with the Commission or any national securities exchange on Forms 8-K, 10-Q which any class of securities of the Company is listed; and 10-K, shall furnish such additional information concerning the business and all other financial condition of the Company as the Underwriters may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports and information furnished to its shareholders generally, not later than the time such reports are first furnished to its shareholders generally.
l. The Trust shall apply the net proceeds of its sale of the Preferred Securities, combined with the entire proceeds from the sale by the Trust stockholders generally or to the Company of the Trust's Common Securities, to purchase an equivalent amount of the Subordinated Debentures. All the net proceeds to be received by the Company from the sale of the Subordinated Debentures will be used for general corporate purposes, as described more fully in the ProspectusCommission).
m. Neither the Company nor the Trust shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriter.
Appears in 1 contract
Covenants of the Offerors. Each of the Trust Offerors jointly and severally covenant with each Underwriter:
(a) At the earliest practicable time after the execution of this Agreement, to file or transmit for filing the Prospectus Supplement with the Commission pursuant to Rule 424 of the Rules and Regulations and to notify the Representative by telephone promptly after the Prospectus Supplement has been so filed or transmitted for filing; and to notify the Representative by telephone, promptly after they shall receive notice thereof, of the time when any amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed with the Commission or transmitted for filing. The Company will timely file all documents required to be filed by the Company covenants with the Underwriter Commission pursuant to the Exchange Act subsequent to the effective date of the Registration Statement and for so long as follows:
a. the delivery of a Prospectus is required in connection with the offering or sale of the Trust Securities. The Offerors will not file any amendment or supplement to the Registration Statement or the Prospectus to which the Representative shall reasonably object by notice to the Offerors after having been furnished with copies a reasonable time prior to filing.
(b) To give the Representative immediate advice, and to confirm the advice in writing, of any request received by the Offerors from the Commission for amendment of the Registration Statement or supplements to the Prospectus or for additional informationinformation with respect thereto, and (iv) of the issuance institution by the Commission of any proceedings for, or any issuance by the Commission of, a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the ProspectusStatement, of the suspension of the qualification of the securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for such purpose. The Trust and the Company will to make every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentprompt withdrawal of any such stop order which may be issued.
b. The Trust and the Company will (c) To deliver to the Underwriter notice of their intention to prepare Representative, at or file any amendment to before the Registration Statement relating to the Preferred Securities (including any post-effective amendment) or any amendment or supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus and including any revised prospectus which the Trust and the Company propose for use by the Underwriter in connection with the offering of the Preferred Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effectiveClosing Time, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Underwriter and counsel for 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 which the Underwriter or counsel for the Underwriter shall reasonably object.
c. The Trust and the Company will deliver to the Underwriter one manually executed signed copy of the Registration Statement as originally initially filed and of each amendment thereto (including all exhibits filed therewith or incorporated therein by reference therein and documents incorporated by reference into not previously furnished and of the Prospectus)Incorporated Documents and to furnish to the Representative upon request, at the earliest practicable time following the filing thereof, such number of conformed copies of the Registration Statement as originally initially filed and of each amendment or supplement thereto without exhibits for each of the Underwriters.
(including documents incorporated by reference into d) To furnish the Underwriters through or upon the order of the Representative, with copies of the Prospectus but without exhibits) in such quantities as such Underwriter the Representative may reasonably request and copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus.
d. The Trust and the Company will furnish to the Underwriter, from time to time during reasonably request, and if the period when the delivery of a Prospectus is required at any time prior to be delivered under the Securities Act, such number expiration of copies nine months after the effective date of the Prospectus (as amended or supplemented, Registration Statement and if applicable) as you may reasonably request for the 13 - 13 - purposes contemplated by the Securities Act or the Securities Act Regulations.
e. If at such time any event shall occur have occurred as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Trust and the Company will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment of or supplement to the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so then amended or supplemented, the Prospectus will not contain any supplemented would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements madetherein, in the light of the circumstances existing at the time it under which they were made when such Prospectus is delivered to a purchaserdelivered, not misleading.
f. The Trust and the Company, during the period when or if for any other reason it shall be necessary to amend or supplement the Prospectus is required in order to comply with the Act, promptly to notify the Representative and upon request of the Representative to amend or supplement the Prospectus by either (i) preparing and furnishing without charge to each Underwriter and to any dealer in securities, upon the order of the Representative, as many copies as the Representative may from time to time reasonably request of an amended Prospectus or a supplement to be delivered under the Securities Act, will file promptly all documents required attached to be filed or furnished with the Commission Prospectus or (ii) making an appropriate filing pursuant to Section 13, 13 or 14 or 15 of the Exchange Act subsequent Act, which, in the case of both clauses (i) and (ii), will correct such statement or omission or effect such compliance, provided that should such event relate solely to activities of any Underwriter, then such Underwriter shall assume the time the Registration Statement becomes effectiveexpense of preparing and furnishing any such amendment or supplement.
g. Both the Trust and the Company will endeavor, in cooperation with the Underwriter, to qualify the Preferred Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securities, except that neither the Trust nor the Company shall be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or other jurisdiction. The Trust and the Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
h. The Company will (e) To make generally available to its the Trust's security holders, as soon promptly as it is practicable to do somay be practicable, but in any event not later than 15 months after the effective date an earning statement of the Registration Statement, an earnings statement Company in reasonable detail (which need not be audited) in reasonable detail, covering a period of at least 12 twelve consecutive months beginning on the first day of the first full fiscal quarter after month next succeeding the effective date of upon which the Registration StatementProspectus Supplement is filed or transmitted for filing pursuant to Rule 424 under the Act, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and will advise you in writing when such statement has been so made available. If such fiscal quarter is the last fiscal quarter of the Trust's fiscal year, such 14 - 14 - earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered therebythereunder.
i. The Trust and the Company will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Preferred Securities.
j. The Trust and the Company, from the date hereof until the Closing Date (including any Option Closing Date), will not offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that in the reasonable judgment of the Underwriter are substantially similar to the Preferred Securities, without the prior written consent of the Underwriter.
k. For f) During a period of five years from the date of this Agreement, to deliver to the Representative and, upon request, to each of the other Underwriters, a copy of each annual and interim report of the Company to its stockholders, and to deliver to the Representative quarterly balance sheets and statements of income and retained earnings (but which need not beyond any such date on be audited) and annual balance sheets and statements of income and retained earnings (which no Securities shall be outstandingaudited) after of the Closing DateCompany, the Trust and the Company will furnish to the Underwriter copies of all reports and communications delivered to the Trust's shareholders or to holders of the Preferred Securities and will also furnish copies of all reports (excluding exhibits) filed with the Commission on Forms 8-Ksuch documents, 10-Q and 10-K, and all other reports and information as shall be of general interest which shall be furnished by the Company to its shareholders generallystockholders. To the extent the accounts of the Company and its subsidiaries are consolidated, such financial statements shall be furnished on a consolidated basis.
(g) To cooperate with the Representative in qualifying the Trust Securities for offer and sale under the securities or "blue sky" laws of such jurisdictions as the Representative may reasonably designate; provided, however, that none of the Offerors shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction, or to comply with any other requirement reasonably deemed by either of them to be unduly burdensome. The Offerors will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request, but in no event beyond the last day of the calendar month in which the first anniversary of the date of this Agreement shall fall.
(h) To use all reasonable efforts to effect the listing of the Securities (including the Securities Guarantee with respect thereto) on the New York Stock Exchange.
(i) During the period beginning from the date of this Agreement and continuing for a period of thirty (30) days from the date of this Agreement, not later than to sell, offer to sell, or otherwise dispose of, any Securities, any security convertible into or exchangeable into or exercisable for Securities or Subordinated Debt Securities or any other securities substantially similar to the time such reports are first furnished to its shareholders generally.
l. The Trust shall apply Subordinated Debt Securities or the net proceeds of its sale Securities (except for the Subordinated Debt Securities and the Securities) without the prior consent of the Preferred SecuritiesRepresentative; provided, combined with however, that nothing herein shall be deemed to restrict the entire proceeds from the offer or sale by the Trust to Company of any debt issued under its Mortgage and Deed of Trust, dated as of June 1, 1939, from the Company of the Trust's Common Securitiesto Citibank, to purchase an equivalent amount of the Subordinated Debentures. All the net proceeds to be received by the Company from the sale of the Subordinated Debentures will be used for general corporate purposesN.A., as described more fully in the Prospectustrustee.
m. Neither the Company nor the Trust shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Washington Water Power Capital Iii)
Covenants of the Offerors. Each of the Trust Offerors jointly and severally covenant with each Underwriter:
(a) At the earliest practicable time after the execution of this Agreement, to file or transmit for filing the Prospectus Supplement with the Commission pursuant to Rule 424 of the Rules and Regulations and to notify the Representative by telephone promptly after the Prospectus Supplement has been so filed or transmitted for filing; and to notify the Representative by telephone, promptly after they shall receive notice thereof, of the time when any amendment to the Registration Statement has become effective or any supplement to the Prospectus has been filed with the Commission or transmitted for filing. The Company will timely file all documents required to be filed by the Company covenants with the Underwriter Commission pursuant to the Exchange Act subsequent to the effective date of the Registration Statement and for so long as follows:
a. the delivery of a Prospectus is required in connection with the offering or sale of the Securities. The Offerors will not file any amendment or supplement to the Registration Statement or the Prospectus to which the Representative shall reasonably object by notice to the Offerors after having been furnished with copies a reasonable time prior to filing.
(b) To give the Representative immediate advice, and to confirm the advice in writing, of any request received by the Offerors from the Commission for amendment of the Registration Statement or supplements to the Prospectus or for additional informationinformation with respect thereto, and (iv) of the issuance institution by the Commission of any proceedings for, or any issuance by the Commission of, a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the ProspectusStatement, of the suspension of the qualification of the securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for such purpose. The Trust and the Company will to make every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible momentprompt withdrawal of any such stop order which may be issued.
b. The Trust and the Company will (c) To deliver to the Underwriter notice of their intention to prepare Representative, at or file any amendment to before the Registration Statement relating to the Preferred Securities (including any post-effective amendment) or any amendment or supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus and including any revised prospectus which the Trust and the Company propose for use by the Underwriter in connection with the offering of the Preferred Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effectiveClosing Time, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Underwriter and counsel for 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 which the Underwriter or counsel for the Underwriter shall reasonably object.
c. The Trust and the Company will deliver to the Underwriter one manually executed signed copy of the Registration Statement as originally initially filed and of each amendment thereto (including all exhibits filed therewith or incorporated therein by reference therein and documents incorporated by reference into not previously furnished and of the Prospectus)Incorporated Documents and to furnish to the Representative upon request, at the earliest practicable time following the filing thereof, such number of conformed copies of the Registration Statement as originally initially filed and of each amendment or supplement thereto without exhibits for each of the Underwriters.
(including documents incorporated by reference into d) To furnish the Underwriters through or upon the order of the Representative, with copies of the Prospectus but without exhibits) in such quantities as such Underwriter the Representative may reasonably request and copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus.
d. The Trust and the Company will furnish to the Underwriter, from time to time during reasonably request, and if the period when the delivery of a Prospectus is required at any time prior to be delivered under the Securities Act, such number expiration of copies nine months after the effective date of the Prospectus (as amended or supplemented, Registration Statement and if applicable) as you may reasonably request for the 13 - 13 - purposes contemplated by the Securities Act or the Securities Act Regulations.
e. If at such time any event shall occur have occurred as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Trust and the Company will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment of or supplement to the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so then amended or supplemented, the Prospectus will not contain any supplemented would include an untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements madetherein, in the light of the circumstances existing at the time it under which they were made when such Prospectus is delivered to a purchaserdelivered, not misleading.
f. The Trust and the Company, during the period when or if for any other reason it shall be necessary to amend or supplement the Prospectus is required in order to comply with the Act, promptly to notify the Representative and upon request of the Representative to amend or supplement the Prospectus by either (i) preparing and furnishing without charge to each Underwriter and to any dealer in securities, upon the order of the Representative, as many copies as the Representative may from time to time reasonably request of an amended Prospectus or a supplement to be delivered under the Securities Act, will file promptly all documents required attached to be filed or furnished with the Commission Prospectus or (ii) making an appropriate filing pursuant to Section 13, 13 or 14 or 15 of the Exchange Act subsequent Act, which, in the case of both clauses (i) and (ii), will correct such statement or omission or effect such compliance, provided that should such event relate solely to activities of any Underwriter, then such Underwriter shall assume the time the Registration Statement becomes effectiveexpense of preparing and furnishing any such amendment or supplement.
g. Both the Trust and the Company will endeavor, in cooperation with the Underwriter, to qualify the Preferred Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securities, except that neither the Trust nor the Company shall be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or other jurisdiction. The Trust and the Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
h. The Company will (e) To make generally available to its the Trust's security holders, as soon promptly as it is practicable to do somay be practicable, but in any event not later than 15 months after the effective date an earning statement of the Registration Statement, an earnings statement Company in reasonable detail (which need not be audited) in reasonable detail, covering a period of at least 12 twelve consecutive months beginning on the first day of the first full fiscal quarter after month next succeeding the effective date of upon which the Registration StatementProspectus Supplement is filed or transmitted for filing pursuant to Rule 424 under the Act, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and will advise you in writing when such statement has been so made available. If such fiscal quarter is the last fiscal quarter of the Trust's fiscal year, such 14 - 14 - earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered therebythereunder.
i. The Trust and the Company will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Preferred Securities.
j. The Trust and the Company, from the date hereof until the Closing Date (including any Option Closing Date), will not offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that in the reasonable judgment of the Underwriter are substantially similar to the Preferred Securities, without the prior written consent of the Underwriter.
k. For f) During a period of five years from the date of this Agreement, to deliver to the Representative and, upon request, to each of the other Underwriters, a copy of each annual and interim report of the Company to its stockholders, and to deliver to the Representative quarterly balance sheets and statements of income and retained earnings (but which need not beyond any such date on be audited) and annual balance sheets and statements of income and retained earnings (which no Securities shall be outstandingaudited) after of the Closing DateCompany, the Trust and the Company will furnish to the Underwriter copies of all such documents, reports and communications delivered information as shall be of general interest which shall be furnished by the Company to its stockholders. To the Trust's shareholders extent the accounts of the Company and its subsidiaries are consolidated, such financial statements shall be furnished on a consolidated basis.
(g) To cooperate with the Representative in qualifying the Securities for offer and sale under the securities or "blue sky" laws of such jurisdictions as the Representative may reasonably designate; provided, however, that none of the Offerors shall be required to qualify as a foreign corporation or to holders file a general consent to service of process in any jurisdiction, or to comply with any other requirement reasonably deemed by either of them to be unduly burdensome. The Offerors will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as the Representative may reasonably request, but in no event beyond the last day of the calendar month in which the first anniversary of the date of this Agreement shall fall.
(h) To use all reasonable efforts to effect the listing of the Preferred Securities (including the Preferred Securities Guarantee with respect thereto) on the New York Stock Exchange.
(i) During the period beginning from the date of this Agreement and will also furnish copies continuing for a period of all reports thirty (excluding exhibits30) filed with days from the Commission on Forms 8-K, 10-Q and 10-K, and all other reports and information furnished to its shareholders generallydate of this Agreement, not later than to sell, offer to sell, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or Subordinated Debt Securities or any other securities substantially similar to the time such reports are first furnished to its shareholders generally.
l. The Trust shall apply Subordinated Debt Securities or the net proceeds of its sale of Preferred Securities (except for the Subordinated Debt Securities and the Preferred Securities) without the prior consent of the Representative; provided, combined with however, that nothing herein shall be deemed to restrict the entire proceeds from the offer or sale by the Trust to Company of any debt issued under its Mortgage and Deed of Trust, dated as of June 1, 1939, from the Company of the Trust's Common Securitiesto Citibank, to purchase an equivalent amount of the Subordinated Debentures. All the net proceeds to be received by the Company from the sale of the Subordinated Debentures will be used for general corporate purposesN.A., as described more fully in the Prospectustrustee.
m. Neither the Company nor the Trust shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Washington Water Power Capital Iii)
Covenants of the Offerors. Each of the Trust and the Company covenants The Offerors agree with the each Underwriter as follows:
a. (a) Promptly following the execution of this Agreement, the Offerors will cause the Prospectus, including as a part thereof a prospectus supplement relating to the Securities to be filed with the Commission pursuant to Rule 424 of the 1933 Act Regulations and the Offerors will promptly advise the Underwriters when such filing has been made. Prior to the filing, the Offerors will cooperate with the Underwriters in the preparation of such prospectus supplement to assure that the Underwriters have no reasonable objection to the form or content thereof when filed or mailed.
(b) The Offerors will comply with the requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations if and as applicable, and will notify the Underwriters immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment 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 additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and (v) of the issuance by any state securities commission or other regulatory authority of any order preventing or suspending the use of any Preliminary Prospectus qualification or the Prospectus, of the suspension of the exemption from qualification of the Securities or the Shares under state securities for offering or sale in any jurisdiction, Blue Sky laws or of the initiation or threatening of any proceeding for such purpose. The Trust and the Company Offerors will make every reasonable effort to prevent the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
b. (c) The Trust and Offerors will give the Company will deliver to the Underwriter Underwriters notice of their its intention to file or prepare or file any amendment to the Registration Statement relating to the Preferred Securities (including any post-effective amendmentamendment and any filing under Rule 462(b) of the 1933 Act Regulations) any Term Sheet or any amendment amendment, supplement or supplement revision to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus and including any revised prospectus which the Trust and the Company propose for use by the Underwriter in connection with the offering of the Preferred Securities which differs from either the prospectus on file at included in the Commission Registration Statement at the time it became effective or to the Registration Statement becomes effectiveProspectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities 1933 Act, the 1934 Act Regulations), or otherwise; will furnish the Underwriter and counsel for the Underwriter Underwriters with copies of any such amendment Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or supplement revision 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 Rule 462(b) Regixxxxxxxx Xxxxxxxxx, Xxxx Xxxet, amendment, supplement or use any such prospectus revision to which the Underwriter Underwriters or counsel for the Underwriter Underwriters shall reasonably object.
c. (d) The Trust and the Company will deliver to Merrxxx Xxxcx xxx counsel for the Underwriter one manually executed copy Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference into the Prospectus)therein) and signed copies of all consents and certificates of experts, such number of and will also deliver to Merrxxx Xxxcx, xxthout charge, a conformed copies copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits) for each of the Underwriters. If applicable, the copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAX, xxcept to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter may reasonably request and copies of each Preliminary Prospectusrequest, the Prospectus and any amended or supplemented Prospectus.
d. The Trust and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to the each Underwriter, from time to time without charge, during the period when the Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented, if applicable) as you such Underwriter may reasonably request for request. If applicable, the 13 - 13 - purposes Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAX, xxcept to the extent permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement and the Prospectus. If at any time when the Prospectus is required by the Securities 1933 Act or the Securities 1934 Act Regulations.
e. If to be delivered in connection with sales of the 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 UnderwriterUnderwriters or 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 a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Trust and the Company will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment of or supplement to the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, that the Prospectus will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleadingor 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 in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and file with the Commission, subject to Section 3(c), 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, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f. (g) The Trust 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 Merrxxx Xxxcx xxx 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).
(l) The Offerors, during the period when the Prospectus is required to be delivered under the Securities 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange 1934 Act subsequent to within the time periods required by the Registration Statement becomes effective1934 Act and the 1934 Act Regulations.
g. Both (m) The Offerors will use their best efforts to effect the Trust listing of the Income PRIDES and the Company will endeavor, in cooperation with Shares on the Underwriter, New York Stock Exchange and to qualify cause the Preferred Securities for offering and sale to be registered under the applicable securities laws 1934 Xxx.
(n) During a period of such states and other jurisdictions 90 days from the date of the United States as the Underwriter may designatePricing Agreement, and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securities, except that neither the Trust nor the Company shall be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or other jurisdiction. The Trust and the Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
h. The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 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 on the first day of the first full fiscal quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and will advise you in writing when such statement has been so made available. If such fiscal quarter is the last fiscal quarter of the Trust's fiscal year, such 14 - 14 - earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
i. The Trust and the Company will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Preferred Securities.
j. The Trust and the Company, from the date hereof until the Closing Date (including any Option Closing Date), will not offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that in the reasonable judgment of the Underwriter are substantially similar to the Preferred Securitieswill, without the prior written consent of Merrxxx Xxxcx, xxrectly or indirectly, sell, offer to sell, grant any option for the Underwritersale of, or otherwise dispose of, or enter into any agreement to sell, any 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 the Junior Subordinated Debentures, or any equity securities substantially similar to the Securities, Preferred Securities, Purchase Contracts or Common Stock or any debt securities substantially similar to the Junior Subordinated Debentures; 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 or stock purchase plan of the Company or its subsidiaries or (ii) in connection with the offering of the Securities, including the Preferred Securities, and the Junior Subordinated Debentures issued pursuant to this Agreement.
k. For (o) During a period of five three years (but not beyond any such date on which no Securities shall be outstanding) after from the Closing DateTime, the Trust and the Company will furnish to make generally available to the Underwriter Underwriters copies of all reports and other communications delivered (financial or other) mailed to stockholders, and to deliver to the Trust's shareholders or to holders of the Preferred Securities and will also furnish Underwriters promptly after they are available, copies of all any reports (excluding exhibits) and financial statements furnished to or filed with the Commission or any national securities exchange on Forms 8-K, 10-Q which any class of securities of the Company is listed; and 10-K, shall furnish such additional information concerning the business and all other financial condition of the Company as the Underwriters may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports and information furnished to its shareholders generally, not later than stockholders generally or to the time such reports are first furnished to its shareholders generallyCommission).
l. (p) The Trust shall apply the net proceeds Company will reserve and keep available at all times, free of its sale preemptive or other similar rights and liens and adverse claims, sufficient shares of Common Stock to satisfy any obligations to issue Shares upon settlement of the Preferred Securities, combined with Purchase Contracts and shall take all actions necessary to keep effective the entire proceeds from the sale by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of the Subordinated Debentures. All the net proceeds to be received by the Company from the sale of the Subordinated Debentures will be used for general corporate purposes, as described more fully in the Prospectus.
m. Neither the Company nor the Trust shall enter into any contractual agreement Registration Statement with respect to the distribution Shares.
(q) None of the Preferred Company, its subsidiaries or any of their respective directors, officers or controlling persons, will take, directly or indirectly, any action resulting in a violation of Regulation M under the 1934 Act, or designed to cause or result in, or that reasonably might be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities except for or the arrangements with the UnderwriterCommon Stock.
Appears in 1 contract
Samples: Underwriting Agreement (MCN Corp)
Covenants of the Offerors. Each In further consideration of the agreements of the Underwriters herein contained, the Offerors covenant as follows: The Trust and the Company covenants Corporation will prepare the Final Prospectus in a form approved by the Underwriters and will file such Final Prospectus with the Underwriter as follows:
a. Commission pursuant to the applicable subparagraph of Rule 424(b) within the time period prescribed. The Trust and the Corporation will notify the Underwriters immediately, and confirm the notice in writing, (i) if not effective at the time of execution of this Agreement, of the effectiveness of the Registration Statement and any amendment thereto (including any post-effective amendment), and of the filing of the Final Prospectus pursuant to Rule 424(b), (ii) of any request by the Commission for any amendment to the Registration Statement, or any amendment or supplement to the Final Prospectus or for additional information, and (iviii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for such purpose. The Trust and the Company Corporation will make every reasonable effort to prevent the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
b. . The Trust and the Company Corporation will deliver to the Underwriter Underwriters such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Final Prospectus and exhibits thereto) as such Underwriters may reasonably request and copies of each Preliminary Final Prospectus, the Final Prospectus and any amendment or supplement to such Final Prospectus. The Trust and the Corporation will furnish to the Underwriters, from time to time during the period when the Final Prospectus is required to be delivered under the Securities Act, such number of copies of the Final Prospectus (as amended or supplemented, if applicable) as they may reasonably request for the purposes contemplated by the Securities Act or the Securities Act Regulations. The Trust and the Corporation will deliver to the Underwriters notice of their intention to prepare or file any amendment to the Registration Statement relating to the Preferred Capital Securities (including any post-effective amendment) or any amendment or supplement to the Final Prospectus (including other than documents deemed to be incorporated by reference into the Prospectus and including any revised prospectus Final Prospectus) which the Trust and the Company Corporation propose for use by the Underwriter Underwriters in connection with the offering of the Preferred Capital Securities and which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities Act Regulations), will furnish the Underwriter Underwriters and counsel for the Underwriter Underwriters with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such prospectus to which the Underwriter Underwriters or counsel for the Underwriter Underwriters shall reasonably object.
c. The Trust . If, during such period after the Closing Date [or the Option Closing Date, as the case may be,] and the Company will deliver prior to the Underwriter one manually executed copy date on which the distribution of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference into the Prospectus), such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits) as such Underwriter may reasonably request and copies of each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus.
d. The Trust and the Company will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the Capital Securities Act, such number of copies of the Prospectus (as amended or supplemented, if applicable) as you may reasonably request for the 13 - 13 - purposes contemplated by the Securities Act or the Securities Act Regulations.
e. If Underwriters is completed, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the UnderwriterOfferors' counsel, to amend or supplement the Final Prospectus (as then amended or supplemented) in order to make ensure that the Final Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Trust and the Company will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment of or supplement to the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, the Prospectus will does not contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements madetherein, in the light of the circumstances existing at the time it is delivered to a purchaserunder which they were made, not misleading.
f. , or it is necessary to amend or supplement the Final Prospectus to comply with law, the Trust and the Corporation will forthwith prepare and furnish, at the Corporation's own expense, to the Underwriters, either amendments or supplements to the Final Prospectus so that the statements in the Final Prospectus as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that the Final Prospectus will comply with law, as the case may be. The Trust and the CompanyCorporation, during the period when the Final Prospectus is required to be delivered under the Securities Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act subsequent to the time the Registration Statement becomes effective.
g. Both the . The Trust and the Company Corporation will endeavor, in cooperation with the Underwriter, endeavor to qualify the Preferred Capital Securities for offering offer and sale under the applicable securities or blue sky laws of such states jurisdictions as any Underwriter shall reasonably request and other jurisdictions to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such qualification and the United States as printing of any memoranda concerning the Underwriter may designateaforesaid qualification; provided, and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securitieshowever, except that neither the Trust nor the Company Offeror shall be required in connection therewith to qualify as a foreign corporation to do business in any jurisdiction where it is not now qualified or to execute a take any action which would subject it to general consent to or unlimited service of process in any state or other jurisdictionjurisdiction where they are not now subject. The During the period beginning on the date hereof and continuing to and including the Closing Date [and any Option Closing Date], the Trust and the Corporation will not offer, sell, contract to sell or otherwise dispose of (other than in an offering made exclusively outside the United States) any securities of the Corporation or the Trust substantially similar to the Capital Securities or any securities convertible into or exchangeable for the Capital Securities without the prior written consent of the Underwriters. During the period when the Capital Securities are outstanding, the Corporation will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
h. Act. The Company Corporation will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 18 months after the effective date of the Registration Statement, an earnings statement or statements of the Corporation (which need not be audited) in reasonable detail, covering a period of at least 12 consecutive months beginning on the first day of the first full fiscal quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and will advise you in writing when such statement has been so made available. If such fiscal quarter is the last fiscal quarter of the Trust's fiscal year, such 14 - 14 - earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
i. The Trust and the Company will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Preferred Securities.
j. The Trust and the Company, from the date hereof until the Closing Date (including any Option Closing Date), will not offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that in the reasonable judgment of the Underwriter are substantially similar to the Preferred Securities, without the prior written consent of the Underwriter.
k. For a period of five years (but not beyond any such date on which no Securities shall be outstanding) after the Closing Date, the Trust and the Company will furnish to the Underwriter copies of all reports and communications delivered to the Trust's shareholders or to holders of the Preferred Securities and will also furnish copies of all reports (excluding exhibits) filed with the Commission on Forms 8-K, 10-Q and 10-K, and all other reports and information furnished to its shareholders generally, not later than the time such reports are first furnished to its shareholders generally.
l. The Trust shall apply the net proceeds of its sale of the Preferred Securities, combined with the entire proceeds from the sale by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of the Subordinated Debentures. All the net proceeds to be received by the Company from the sale of the Subordinated Debentures will be used for general corporate purposes, as described more fully in the Prospectus.
m. Neither the Company nor the Trust shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriter.
Appears in 1 contract
Covenants of the Offerors. Each of the Trust and the Company covenants The Offerors agree with the each Underwriter as follows:
a. (a) Promptly following the execution of this Agreement, the Offerors will cause the Prospectus, including as a part thereof a prospectus supplement relating to the Securities, to be filed with the Commission pursuant to Rule 424 of the 1933 Act Regulations and the Offerors will promptly advise the Underwriters when such filing has been made. Prior to the filing, the Offerors will cooperate with the Underwriters in the preparation of such prospectus supplement to assure that the Underwriters have no reasonable objection to the form or content thereof when filed or mailed.
(b) The Offerors will comply with the requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and as applicable, and will notify the Underwriters immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment 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 additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose and (v) of the issuance by any state securities commission or other regulatory authority of any order preventing or suspending the use of any Preliminary Prospectus qualification or the Prospectus, of the suspension of the exemption from qualification of the Securities under state securities for offering or sale in any jurisdiction, Blue Sky laws or of the initiation or threatening of any proceeding for such purpose. The Trust and the Company Offerors will make every reasonable effort to prevent the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
b. (c) The Trust and the Company will deliver to give the Underwriter Underwriters notice of their its intention to file or prepare or file any amendment to the Registration Statement relating to the Preferred Securities (including any post-effective amendmentamendment and any filing under Rule 462(b) of the 1933 Act Regulations) any Term Sheet or any amendment amendment, supplement or supplement revision to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus and including any revised prospectus which the Trust and the Company propose for use by the Underwriter in connection with the offering of the Preferred Securities which differs from either the prospectus on file at included in the Commission Registration Statement at the time it became effective or to the Registration Statement becomes effectiveProspectus, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the Securities 1933 Act, the 1934 Act Regulations), or otherwise; will furnish the Underwriter and counsel for the Underwriter Underwriters with copies of any such amendment Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or supplement revision 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 Rule 462(b) Registration Statement, Term Sheet, amendment, supplement or use any such prospectus revision to which the Underwriter Underwriters or counsel for the Underwriter Underwriters shall reasonably object.
c. (d) The Trust and the Company will deliver to Xxxxxxx Xxxxx and counsel for the Underwriter one manually executed copy Underwriters, without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference into the Prospectus)therein) and signed copies of all consents and certificates of experts and will also deliver to Xxxxxxx Xxxxx, such number of without charge, a conformed copies copy of the Registration Statement as originally filed and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits) for each of the Underwriters. If applicable, the copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter may reasonably request and copies of each Preliminary Prospectusrequest, the Prospectus and any amended or supplemented Prospectus.
d. The Trust and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to the each Underwriter, from time to time without charge, during the period when the Prospectus is required to be delivered under the Securities 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented, if applicable) as you such Underwriter may reasonably request for request. If applicable, the 13 - 13 - purposes Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) The Offerors will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement and the Prospectus. If at any time when the Prospectus is required by the Securities 1933 Act or the Securities 1934 Act Regulations.
e. If to be delivered in connection with sales of the 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 UnderwriterUnderwriters or 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 a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Trust and the Company will forthwith amend or supplement the Prospectus by preparing and furnishing to the Underwriter a reasonable number of copies of an amendment of or supplement to the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, that the Prospectus will not contain any include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleadingor 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 in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare and file with the Commission, subject to 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, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f. (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 Xxxxxxx Xxxxx 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 Company 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.
(h) The Company will, on behalf of the Trust, make generally available to the Trust's 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, a consolidated earnings statement of the Company (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 Trust 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 the Offerors elect to rely upon Rule 462(b), the Offerors shall both 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).
(k) The Company, during the period when the Prospectus is required to be delivered under the Securities 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange 1934 Act subsequent to within the time periods required by the Registration Statement becomes effective1934 Act and the 1934 Act Regulations.
g. Both (l) The Offerors will use their best efforts to effect the Trust listing of the Preferred Securities (including the Preferred Securities Guarantee with respect thereto) on the New York Stock Exchange and to cause the Securities to be registered under the 1934 Act. If the Preferred Securities are exchanged for Subordinated Debt Securities, the Company will endeavor, in cooperation with use its best efforts to effect the Underwriter, to qualify listing of the Subordinated Debt Securities on the exchange on which the Preferred Securities for offering were then listed and sale to cause the Subordinated Debt Securities to be registered under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate1934 Act.
(m) Until _______, and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securities1997, except that neither the Trust nor the Company shall be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or other jurisdiction. The Trust and the Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
h. The Company will make generally available to its security holders, as soon as it is practicable to do so, but in any event not later than 15 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 on the first day of the first full fiscal quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the requirements of Section 11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and will advise you in writing when such statement has been so made available. If such fiscal quarter is the last fiscal quarter of the Trust's fiscal year, such 14 - 14 - earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
i. The Trust and the Company will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the offering of the Preferred Securities.
j. The Trust and the Company, from the date hereof until the Closing Date (including any Option Closing Date), will not offer, sell, contract to sell or otherwise dispose of any securities issued or guaranteed by the Trust or the Company that in the reasonable judgment of the Underwriter are substantially similar to the Preferred Securitieswill, without the prior written consent of the UnderwriterUnderwriters, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, or enter into any agreement to sell, any Preferred Securities, any security convertible into or exchangeable or exercisable for Preferred Securities, or any equity securities substantially similar to the Preferred Securities (except the Subordinated Debt Securities and the Preferred Securities issued pursuant to this Agreement).
k. For (n) During a period of five three years (but not beyond any such date on which no Securities shall be outstanding) after from the Closing DateTime, the Trust and the Company will furnish make generally available to the Underwriter Underwriters copies of all reports and other communications delivered (financial or other) mailed to stockholders, and to deliver to the Trust's shareholders or to holders of the Preferred Securities and will also furnish Underwriters promptly after they are available, copies of all any reports (excluding exhibits) and financial statements furnished to or filed with the Commission or any national securities exchange on Forms 8-K, 10-Q which any class of securities of the Company is listed; and 10-K, shall furnish such additional information concerning the business and all other financial condition of the Company as the Underwriters may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports and information furnished to its shareholders generally, not later than the time such reports are first furnished to its shareholders generally.
l. The Trust shall apply the net proceeds of its sale of the Preferred Securities, combined with the entire proceeds from the sale by the Trust stockholders generally or to the Company of the Trust's Common Securities, to purchase an equivalent amount of the Subordinated Debentures. All the net proceeds to be received by the Company from the sale of the Subordinated Debentures will be used for general corporate purposes, as described more fully in the ProspectusCommission).
m. Neither the Company nor the Trust shall enter into any contractual agreement with respect to the distribution of the Preferred Securities except for the arrangements with the Underwriter.
Appears in 1 contract
