Covenants of the Partnership Parties. The Partnership Parties covenant with each Underwriter as follows: (a) To furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(i) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request. (b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule. (c) If there is a post-effective amendment to the Registration Statement that is not effective under the Securities Act, to use its reasonable best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and to notify you, promptly after it shall receive notice thereof, of the time when the post-effective amendment to the Registration Statement has become effective. (d) To promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement or for supplement to any prospectus or for any additional information, and of the issuance by the Commission or any state or other jurisdiction or other regulatory body of any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any issuer free writing prospectus or suspending the qualification or registration of the Units for offering, issuance or sale in any jurisdiction, and of the institution or threat of any proceedings therefor, of which they shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if issued, to secure the prompt removal thereof. (e) Unless they have obtained or will obtain the prior written consent of the Underwriters, they have not made and will not make any offer relating to the Units that would constitute an issuer free writing prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433 under the Securities Act; provided, however, that prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto. The Partnership Parties agree that each issuer free writing prospectus has complied and will comply, as the case may be, with the applicable requirements of Rules 164 and 433 under the Securities Act, including in respect of timely filing with the Commission, legending and record keeping. (f) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Partnership and not to use or refer to any proposed free writing prospectus to which you reasonably object. (g) Not to take any action that would result in an Underwriter or the Partnership being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder. (h) During the period when a prospectus relating to any of the Units is required to be delivered under the Securities Act by any Underwriter or dealer, to comply, at its own expense, with all requirements imposed by the Securities Act and the applicable rules and regulations of the Commission thereunder, so far as necessary to permit the continuance of sales of, or dealing in, the Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus. (i) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law. (j) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Partnership) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law. (k) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, that none of the CMLP Entities shall be required to qualify as a foreign entity or to take any action that would subject any of the CMLP Entities to service of process in any such jurisdiction where any such entity is not presently qualified or already subject to service of process or where any such entity would be subject to taxation as a foreign entity where it is not otherwise subject to taxation. (l) As soon as practicable, the Partnership will make generally available to the Partnership’s security holders and to you an earnings statement or statements of the CMLP Entities which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act. (m) The Partnership, during the period when the Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act. (n) The Partnership will apply the proceeds from the sale of the Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus. (o) To promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Units under the Securities Act. (p) The Partnership Parties will not invest or otherwise use the proceeds received by the Partnership from its sale of the Units in such a manner as would require any of the CMLP Entities to register as an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder. (q) The Partnership will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Partnership, a registrar for the Common Units. (r) To pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Partnership’s counsel and the Partnership’s accountants in connection with the registration and delivery of the Units under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by any of the Partnership Parties and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(j) hereof, including filing fees and the reasonable fees and disbursements of external counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of external counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Units by the FINRA, (v) all costs and expenses incident to listing the Units on the NYSE, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) the costs and expenses of the Partnership Parties relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Partnership, travel and lodging expenses of the representatives (which, for the avoidance of doubt, shall not include the Underwriters) and officers of the Partnership Parties and any such consultants, and 50% of the cost of any aircraft chartered in connection with any road show with the prior approval of the Partnership Parties (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other costs and expenses incident to the performance of the obligations of the Partnership Parties hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Units by them and any advertising expenses connected with any offers they may make. (s) The Partnership will furnish to you duly executed “lock-up” letter agreements, each substantially in the form of Exhibit B-1 hereto, between you and any officer or director of the General Partner newly elected or appointed during the 45-day restricted period (including any extension of such period thereof) described in the two immediately following paragraphs below. Each of the Partnership Parties also covenants with each Underwriter that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC and Citigroup Global Markets Inc. on behalf of the Underwriters, it will not, during the period ending 45 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Units or any securities convertible into or exercisable or exchangeable for Common Units or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or such other securities, in cash or otherwise or (3) file any registration statement with the Commission relating to the offering of any Common Units or any securities convertible into or exercisable or exchangeable for Common Units (other than any registration statement on Form S-8). The restrictions contained in the preceding paragraph shall not apply to (a) the Units to be sold hereunder, (b) the issuance by the Partnership of Common Units pursuant to the Acquisition Agreement as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (c) the issuance by the Partnership of equity awards pursuant to employee benefit plans described in the Time of Sale Prospectus, provided that either (i) such equity awards are not transferrable and the securities underlying such awards do not vest during the 45-day period, or (ii) the recipient thereof enters into a “lock-up” lock-up agreement in the form of Exhibit B-1 hereto with respect to the remaining 45-day restricted period (as such period may be extended pursuant to such agreement), (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of Common Units, provided that such plan does not provide for the transfer of Common Units during the 45-day restricted period and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of a party to the a lock-up agreement or any of the Partnership Parties, or (e) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, in each case in connection with acquisitions and capital improvements that the General Partner determines will increase cash flow from operations on a per unit basis after giving effect to such issuance, provided that any recipient of such Common Units thereof enters into a “lock-up” letter agreement in the form of Exhibit B-1 hereto with respect to the remaining term of the restricted period (as such period may be extended pursuant to such agreement).
Appears in 1 contract
Samples: Underwriting Agreement (Crestwood Midstream Partners LP)
Covenants of the Partnership Parties. The Partnership Parties covenant with each Underwriter as follows:
(a) (i) to prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; (ii) to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the later of the Closing Date or any Option Closing Date, as the case may be, except as provided herein; (iii) to advise the Representative, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representative with copies thereof; (iv) to advise the Representative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Free Writing Prospectus, of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Free Writing Prospectus or for additional information; and, (v) in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish to you the Representative, without charge, [•] signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representative, in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(i7(f) or 7(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you the Representative may reasonably request.
(bc) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you the Representative a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you the Representative reasonably objectobjects, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) If there is a post-effective amendment to the Registration Statement that is not effective under the Securities Act, to use its reasonable best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and to notify you, promptly after it shall receive notice thereof, of the time when the post-effective amendment to the Registration Statement has become effective.
(d) To promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement or for supplement to any prospectus or for any additional information, and of the issuance by the Commission or any state or other jurisdiction or other regulatory body of any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any issuer free writing prospectus or suspending the qualification or registration of the Units for offering, issuance or sale in any jurisdiction, and of the institution or threat of any proceedings therefor, of which they shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if issued, to secure the prompt removal thereof.
(e) Unless they have obtained or will obtain the prior written consent of the Underwriters, they have not made and will not make any offer relating to the Units that would constitute an issuer free writing prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433 under the Securities Act; provided, however, that prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto. The Partnership Parties agree that each issuer free writing prospectus has complied and will comply, as the case may be, with the applicable requirements of Rules 164 and 433 under the Securities Act, including in respect of timely filing with the Commission, legending and record keeping.
(f) To furnish to you the Representative a copy of each proposed free writing prospectus Free Writing Prospectus to be prepared by or on behalf of, used by, or referred to by the Partnership and not to use or refer to any proposed free writing prospectus Free Writing Prospectus to which you the Representative reasonably object.
(ge) Not to take any action that would result in an Underwriter or the Partnership being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus Free Writing Prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(h) During the period when a prospectus relating to any of the Units is required to be delivered under the Securities Act by any Underwriter or dealer, to comply, at its own expense, with all requirements imposed by the Securities Act and the applicable rules and regulations of the Commission thereunder, so far as necessary to permit the continuance of sales of, or dealing in, the Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(if) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(jg) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters Underwriters, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you the Representative will furnish to the Partnership) to which Units may have been sold by you the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(kh) To endeavor to qualify The Partnership will arrange for the qualification of the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, that none of the CMLP Entities shall be Representative designates and will continue such qualifications in effect so long as required to qualify as a foreign entity or to take any action that would subject any of for the CMLP Entities to service of process in any such jurisdiction where any such entity is not presently qualified or already subject to service of process or where any such entity would be subject to taxation as a foreign entity where it is not otherwise subject to taxationdistribution.
(li) As soon as practicable, the Partnership will To make generally available to the Partnership’s security holders and to you the Representative as soon as practicable an earnings statement or statements covering a period of at least twelve months beginning with the first fiscal quarter of the CMLP Entities Partnership occurring after the date of this Agreement, which will shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(m) The Partnership, during the period when the Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(n) The Partnership will apply the proceeds from the sale of the Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus.
(o) To promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Units under the Securities Act.
(p) The Partnership Parties will not invest or otherwise use the proceeds received by the Partnership from its sale of the Units in such a manner as would require any of the CMLP Entities to register as an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(qj) To comply with all applicable securities and other laws, rules and regulations in each jurisdiction in which the Directed Units are offered in connection with the Directed Unit Program.
(k) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.
(l) The Partnership will maintain a transfer agent and, promptly notify the Representative if necessary under the jurisdiction Partnership ceases to be an Emerging Growth Company at any time prior to the later of formation (a) completion of the Partnership, a registrar for the Common Units.
(r) To pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Partnership’s counsel and the Partnership’s accountants in connection with the registration and delivery distribution of the Units under within the meaning of the Securities Act and all other fees or expenses (b) completion of the Restricted Period referred to in Section 2.
(m) The Partnership will use the net proceeds received by it in connection with this offering in the preparation and filing manner described in the “Use of the Registration Statement, any preliminary prospectus, Proceeds” section of the Time of Sale Prospectus, .
(n) If at any time following the Prospectus, distribution of any free writing prospectus prepared by Written Testing-the-Waters Communication there occurred or on behalf of, used by, occurs an event or referred development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to by any of state a material fact necessary in order to make the Partnership Parties and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealersstatements therein, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery light of the Units to the Underwriterscircumstances existing at that subsequent time, including any transfer or other taxes payable thereonnot misleading, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(j) hereof, including filing fees and the reasonable fees and disbursements of external counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of external counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Units by the FINRA, (v) all costs and expenses incident to listing the Units on the NYSE, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) the costs and expenses of the Partnership Parties relating will promptly notify the Representative and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation eliminate or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Partnership, travel and lodging expenses of the representatives (which, for the avoidance of doubt, shall not include the Underwriters) and officers of the Partnership Parties and any correct such consultants, and 50% of the cost of any aircraft chartered in connection with any road show with the prior approval of the Partnership Parties (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other costs and expenses incident to the performance of the obligations of the Partnership Parties hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Units by them and any advertising expenses connected with any offers they may makeuntrue statement or omission.
(so) The Partnership Parties will furnish to you duly executed “lock-up” letter agreements, each substantially in the form of Exhibit B-1 hereto, between you and any officer or director of the General Partner newly elected or appointed during the 45-day restricted period (including any extension of such period thereof) described in the two immediately following paragraphs below. Each of the Partnership Parties also covenants with each Underwriter that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC and Citigroup Global Markets Inc. on behalf of the Underwriters, it will not, during the period ending 45 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose ofnot take, directly or indirectly, any Common Units action designed to or any securities convertible into that has constituted or exercisable that could reasonably be expected to cause or exchangeable for Common Units result in the stabilization or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any manipulation of the economic consequences price of ownership any security of the Common Units, whether any such transaction described Partnership in clause (1) or (2) above is to be settled by delivery of Common Units or such other securities, in cash or otherwise or (3) file any registration statement connection with the Commission relating to the offering of any Common the Units.
(p) The Partnership will ensure that the Directed Units or any securities convertible into or exercisable or exchangeable for Common Units (other than any registration statement on Form S-8). The restrictions contained in the preceding paragraph shall not apply to (a) the Units to will be sold hereunder, (b) the issuance by the Partnership of Common Units pursuant restricted to the Acquisition Agreement as described in extent required by FINRA or the FINRA rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (c) the issuance by . Xxxxxx Xxxxxxx & Co. LLC will notify the Partnership of equity awards pursuant as to employee benefit plans described in which Participants will need to be so restricted. The Partnership will direct the Time of Sale Prospectus, provided that either (i) transfer agent to place stop transfer restrictions upon such equity awards are not transferrable and the securities underlying such awards do not vest during the 45-day period, or (ii) the recipient thereof enters into a “lock-up” lock-up agreement in the form of Exhibit B-1 hereto with respect to the remaining 45-day restricted period (as for such period may be extended pursuant to such agreement)of time.
(q) The Partnership will comply with all applicable securities and other applicable laws, (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of Common Units, provided that such plan does not provide for the transfer of Common Units during the 45-day restricted period rules and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of a party to the a lock-up agreement or any of the Partnership Parties, or (e) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, regulations in each case foreign jurisdiction in which the Directed Units are offered in connection with acquisitions the Directed Unit Program.
(r) The Partnership will do and capital improvements that the General Partner determines will increase cash flow from operations on a per unit basis after giving effect perform all things required or necessary to such issuance, provided that any recipient of such Common Units thereof enters into a “lock-up” letter agreement in the form of Exhibit B-1 hereto with respect be done and performed under this Agreement by it prior to the remaining term of Closing Date and the restricted period (applicable Option Closing Date, as such period the case may be extended pursuant be, and to such agreement)satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Units.
Appears in 1 contract
Samples: Underwriting Agreement (Oasis Midstream Partners LP)
Covenants of the Partnership Parties. The Partnership Parties covenant with each Underwriter as follows:
(a) (i) to prepare the Prospectus in a form approved by the Representative and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; (ii) to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the later of the Closing Date or any Option Closing Date, as the case may be, except as provided herein; (iii) to advise the Representative, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representative with copies thereof; (iv) to advise the Representative, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Free Writing Prospectus, of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Free Writing Prospectus or for additional information; and, (v) in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish to you the Representative, without charge, signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representative, in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(i7(f) or 7(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you the Representative may reasonably request.
(bc) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you the Representative a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you the Representative reasonably objectobjects, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) If there is a post-effective amendment to the Registration Statement that is not effective under the Securities Act, to use its reasonable best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and to notify you, promptly after it shall receive notice thereof, of the time when the post-effective amendment to the Registration Statement has become effective.
(d) To promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement or for supplement to any prospectus or for any additional information, and of the issuance by the Commission or any state or other jurisdiction or other regulatory body of any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any issuer free writing prospectus or suspending the qualification or registration of the Units for offering, issuance or sale in any jurisdiction, and of the institution or threat of any proceedings therefor, of which they shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if issued, to secure the prompt removal thereof.
(e) Unless they have obtained or will obtain the prior written consent of the Underwriters, they have not made and will not make any offer relating to the Units that would constitute an issuer free writing prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433 under the Securities Act; provided, however, that prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto. The Partnership Parties agree that each issuer free writing prospectus has complied and will comply, as the case may be, with the applicable requirements of Rules 164 and 433 under the Securities Act, including in respect of timely filing with the Commission, legending and record keeping.
(f) To furnish to you the Representative a copy of each proposed free writing prospectus Free Writing Prospectus to be prepared by or on behalf of, used by, or referred to by the Partnership and not to use or refer to any proposed free writing prospectus Free Writing Prospectus to which you the Representative reasonably object.
(ge) Not to take any action that would result in an Underwriter or the Partnership being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus Free Writing Prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(h) During the period when a prospectus relating to any of the Units is required to be delivered under the Securities Act by any Underwriter or dealer, to comply, at its own expense, with all requirements imposed by the Securities Act and the applicable rules and regulations of the Commission thereunder, so far as necessary to permit the continuance of sales of, or dealing in, the Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(if) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(jg) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters Underwriters, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you the Representative will furnish to the Partnership) to which Units may have been sold by you the Representative on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(kh) To endeavor to qualify The Partnership will arrange for the qualification of the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, that none of the CMLP Entities shall be Representative designates and will continue such qualifications in effect so long as required to qualify as a foreign entity or to take any action that would subject any of for the CMLP Entities to service of process in any such jurisdiction where any such entity is not presently qualified or already subject to service of process or where any such entity would be subject to taxation as a foreign entity where it is not otherwise subject to taxationdistribution.
(li) As soon as practicable, the Partnership will To make generally available to the Partnership’s security holders and to you the Representative as soon as practicable an earnings statement or statements covering a period of at least twelve months beginning with the first fiscal quarter of the CMLP Entities Partnership occurring after the date of this Agreement, which will shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(m) The Partnership, during the period when the Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(n) The Partnership will apply the proceeds from the sale of the Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus.
(o) To promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Units under the Securities Act.
(p) The Partnership Parties will not invest or otherwise use the proceeds received by the Partnership from its sale of the Units in such a manner as would require any of the CMLP Entities to register as an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(qj) To comply with all applicable securities and other laws, rules and regulations in each jurisdiction in which the Directed Units are offered in connection with the Directed Unit Program.
(k) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.
(l) The Partnership will maintain a transfer agent and, promptly notify the Representative if necessary under the jurisdiction Partnership ceases to be an Emerging Growth Company at any time prior to the later of formation (a) completion of the Partnership, a registrar for the Common Units.
(r) To pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Partnership’s counsel and the Partnership’s accountants in connection with the registration and delivery distribution of the Units under within the meaning of the Securities Act and all other fees or expenses (b) completion of the Restricted Period referred to in Section 2.
(m) The Partnership will use the net proceeds received by it in connection with this offering in the preparation and filing manner described in the “Use of the Registration Statement, any preliminary prospectus, Proceeds” section of the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by any of the Partnership Parties and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(j) hereof, including filing fees and the reasonable fees and disbursements of external counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of external counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Units by the FINRA, (v) all costs and expenses incident to listing the Units on the NYSE, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) the costs and expenses of the Partnership Parties relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Partnership, travel and lodging expenses of the representatives (which, for the avoidance of doubt, shall not include the Underwriters) and officers of the Partnership Parties and any such consultants, and 50% of the cost of any aircraft chartered in connection with any road show with the prior approval of the Partnership Parties (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other costs and expenses incident to the performance of the obligations of the Partnership Parties hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Units by them and any advertising expenses connected with any offers they may make.
(sn) [Reserved]
(o) The Partnership Parties will furnish to you duly executed “lock-up” letter agreements, each substantially in the form of Exhibit B-1 hereto, between you and any officer or director of the General Partner newly elected or appointed during the 45-day restricted period (including any extension of such period thereof) described in the two immediately following paragraphs below. Each of the Partnership Parties also covenants with each Underwriter that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC and Citigroup Global Markets Inc. on behalf of the Underwriters, it will not, during the period ending 45 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose ofnot take, directly or indirectly, any Common Units action designed to or any securities convertible into that has constituted or exercisable that could reasonably be expected to cause or exchangeable for Common Units result in the stabilization or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any manipulation of the economic consequences price of ownership any security of the Common Units, whether any such transaction described Partnership in clause (1) or (2) above is to be settled by delivery of Common Units or such other securities, in cash or otherwise or (3) file any registration statement connection with the Commission relating to the offering of any Common the Units.
(p) The Partnership will ensure that the Directed Units or any securities convertible into or exercisable or exchangeable for Common Units (other than any registration statement on Form S-8). The restrictions contained in the preceding paragraph shall not apply to (a) the Units to will be sold hereunder, (b) the issuance by the Partnership of Common Units pursuant restricted to the Acquisition Agreement as described in extent required by FINRA or the FINRA rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (c) the issuance by . Xxxxxx Xxxxxxx & Co. LLC will notify the Partnership of equity awards pursuant as to employee benefit plans described in which Participants will need to be so restricted. The Partnership will direct the Time of Sale Prospectus, provided that either (i) transfer agent to place stop transfer restrictions upon such equity awards are not transferrable and the securities underlying such awards do not vest during the 45-day period, or (ii) the recipient thereof enters into a “lock-up” lock-up agreement in the form of Exhibit B-1 hereto with respect to the remaining 45-day restricted period (as for such period may be extended pursuant to such agreement)of time.
(q) The Partnership will comply with all applicable securities and other applicable laws, (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of Common Units, provided that such plan does not provide for the transfer of Common Units during the 45-day restricted period rules and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of a party to the a lock-up agreement or any of the Partnership Parties, or (e) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, regulations in each case foreign jurisdiction in which the Directed Units are offered in connection with acquisitions the Directed Unit Program.
(r) The Partnership will do and capital improvements that the General Partner determines will increase cash flow from operations on a per unit basis after giving effect perform all things required or necessary to such issuance, provided that any recipient of such Common Units thereof enters into a “lock-up” letter agreement in the form of Exhibit B-1 hereto with respect be done and performed under this Agreement by it prior to the remaining term of Closing Date and the restricted period (applicable Option Closing Date, as such period the case may be extended pursuant be, and to such agreement)satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Units.
Appears in 1 contract
Samples: Underwriting Agreement (Oasis Midstream Partners LP)
Covenants of the Partnership Parties. The Partnership Parties covenant with each Underwriter as follows:
(a) (i) to prepare the Prospectus in a form approved by the Underwriters and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; (ii) to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the later of the Closing Date or any Option Closing Date, as the case may be, except as provided herein; (iii) to advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriters with copies thereof; (iv) to advise the Underwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Free Writing Prospectus, of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Free Writing Prospectus or for additional information; and, (v) in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish to you the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Underwriters, in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(i7(f) or 7(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you the Underwriters may reasonably request.
(bc) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you the Underwriters a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you the Underwriters reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) If there is a post-effective amendment to the Registration Statement that is not effective under the Securities Act, to use its reasonable best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and to notify you, promptly after it shall receive notice thereof, of the time when the post-effective amendment to the Registration Statement has become effective.
(d) To promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement or for supplement to any prospectus or for any additional information, and of the issuance by the Commission or any state or other jurisdiction or other regulatory body of any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any issuer free writing prospectus or suspending the qualification or registration of the Units for offering, issuance or sale in any jurisdiction, and of the institution or threat of any proceedings therefor, of which they shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if issued, to secure the prompt removal thereof.
(e) Unless they have obtained or will obtain the prior written consent of the Underwriters, they have not made and will not make any offer relating to the Units that would constitute an issuer free writing prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433 under the Securities Act; provided, however, that prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto. The Partnership Parties agree that each issuer free writing prospectus has complied and will comply, as the case may be, with the applicable requirements of Rules 164 and 433 under the Securities Act, including in respect of timely filing with the Commission, legending and record keeping.
(f) To furnish to you the Underwriters a copy of each proposed free writing prospectus Free Writing Prospectus to be prepared by or on behalf of, used by, or referred to by the Partnership and not to use or refer to any proposed free writing prospectus Free Writing Prospectus to which you the Underwriters reasonably object.
(ge) Not to take any action that would result in an Underwriter or the Partnership being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus Free Writing Prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(h) During the period when a prospectus relating to any of the Units is required to be delivered under the Securities Act by any Underwriter or dealer, to comply, at its own expense, with all requirements imposed by the Securities Act and the applicable rules and regulations of the Commission thereunder, so far as necessary to permit the continuance of sales of, or dealing in, the Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(if) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(jg) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters Underwriters, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you the Underwriters will furnish to the Partnership) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(kh) To endeavor to qualify The Partnership will arrange for the qualification of the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, that none of the CMLP Entities shall be Underwriters designate and will continue such qualifications in effect so long as required to qualify as a foreign entity or to take any action that would subject any of for the CMLP Entities to service of process in any such jurisdiction where any such entity is not presently qualified or already subject to service of process or where any such entity would be subject to taxation as a foreign entity where it is not otherwise subject to taxationdistribution.
(li) As soon as practicable, the Partnership will To make generally available to the Partnership’s security holders and to you the Underwriters as soon as practicable an earnings statement or statements covering a period of at least twelve months beginning with the first fiscal quarter of the CMLP Entities Partnership occurring after the date of this Agreement, which will shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(m) The Partnership, during the period when the Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(n) The Partnership will apply the proceeds from the sale of the Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus.
(o) To promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Units under the Securities Act.
(p) The Partnership Parties will not invest or otherwise use the proceeds received by the Partnership from its sale of the Units in such a manner as would require any of the CMLP Entities to register as an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(qj) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.
(k) The Partnership will maintain a transfer agent and, promptly notify the Underwriters if necessary under the jurisdiction Partnership ceases to be an Emerging Growth Company at any time prior to the later of formation (a) completion of the Partnership, a registrar for the Common Units.
(r) To pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Partnership’s counsel and the Partnership’s accountants in connection with the registration and delivery distribution of the Units under within the meaning of the Securities Act and all other fees or expenses (b) completion of the Restricted Period referred to in Section 2.
(l) The Partnership will use the net proceeds received by it in connection with this offering in the preparation and filing manner described in the “Use of the Registration Statement, any preliminary prospectus, Proceeds” section of the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by any of the Partnership Parties and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(j) hereof, including filing fees and the reasonable fees and disbursements of external counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of external counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Units by the FINRA, (v) all costs and expenses incident to listing the Units on the NYSE, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) the costs and expenses of the Partnership Parties relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Partnership, travel and lodging expenses of the representatives (which, for the avoidance of doubt, shall not include the Underwriters) and officers of the Partnership Parties and any such consultants, and 50% of the cost of any aircraft chartered in connection with any road show with the prior approval of the Partnership Parties (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other costs and expenses incident to the performance of the obligations of the Partnership Parties hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Units by them and any advertising expenses connected with any offers they may make.
(sm) The Partnership Parties will furnish to you duly executed “lock-up” letter agreements, each substantially in the form of Exhibit B-1 hereto, between you and any officer or director of the General Partner newly elected or appointed during the 45-day restricted period (including any extension of such period thereof) described in the two immediately following paragraphs below. Each of the Partnership Parties also covenants with each Underwriter that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC and Citigroup Global Markets Inc. on behalf of the Underwriters, it will not, during the period ending 45 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose ofnot take, directly or indirectly, any Common Units action designed to or any securities convertible into that has constituted or exercisable that could reasonably be expected to cause or exchangeable for Common Units result in the stabilization or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any manipulation of the economic consequences price of ownership any security of the Common Units, whether any such transaction described Partnership in clause (1) or (2) above is to be settled by delivery of Common Units or such other securities, in cash or otherwise or (3) file any registration statement connection with the Commission relating to the offering of any Common Units the Units.
(n) The Partnership will do and perform all things required or any securities convertible into or exercisable or exchangeable for Common Units (other than any registration statement on Form S-8). The restrictions contained in the preceding paragraph shall not apply to (a) the Units necessary to be sold hereunder, (b) the issuance done and performed under this Agreement by the Partnership of Common Units pursuant it prior to the Acquisition Agreement as described in the Registration Statement, the Time of Sale Prospectus Closing Date and the Prospectusapplicable Option Closing Date, (c) as the issuance by the Partnership of equity awards pursuant case may be, and to employee benefit plans described in the Time of Sale Prospectus, provided that either (i) such equity awards are not transferrable and the securities underlying such awards do not vest during the 45-day period, or (ii) the recipient thereof enters into a “lock-up” lock-up agreement in the form of Exhibit B-1 hereto with respect satisfy all conditions precedent to the remaining 45-day restricted period (as such period may be extended pursuant Underwriters’ obligations hereunder to such agreement), (d) purchase the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of Common Units, provided that such plan does not provide for the transfer of Common Units during the 45-day restricted period and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of a party to the a lock-up agreement or any of the Partnership Parties, or (e) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, in each case in connection with acquisitions and capital improvements that the General Partner determines will increase cash flow from operations on a per unit basis after giving effect to such issuance, provided that any recipient of such Common Units thereof enters into a “lock-up” letter agreement in the form of Exhibit B-1 hereto with respect to the remaining term of the restricted period (as such period may be extended pursuant to such agreement).
Appears in 1 contract
Samples: Underwriting Agreement (Oasis Midstream Partners LP)
Covenants of the Partnership Parties. The Partnership Parties covenant with each Underwriter as follows:
(a) (i) to prepare the Prospectus in a form approved by the Underwriters and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; (ii) to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the later of the Closing Date or any Option Closing Date, as the case may be, except as provided herein; (iii) to advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Underwriters with copies thereof; (iv) to advise the Underwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Free Writing Prospectus, of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Free Writing Prospectus or for additional information; and, (v) in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish to you the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Underwriters, in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(i7(f) or 7(g) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you the Underwriters may reasonably request.
(bc) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you the Underwriters a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you the Underwriters reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) If there is a post-effective amendment to the Registration Statement that is not effective under the Securities Act, to use its reasonable best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and to notify you, promptly after it shall receive notice thereof, of the time when the post-effective amendment to the Registration Statement has become effective.
(d) To promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement or for supplement to any prospectus or for any additional information, and of the issuance by the Commission or any state or other jurisdiction or other regulatory body of any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any issuer free writing prospectus or suspending the qualification or registration of the Units for offering, issuance or sale in any jurisdiction, and of the institution or threat of any proceedings therefor, of which they shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if issued, to secure the prompt removal thereof.
(e) Unless they have obtained or will obtain the prior written consent of the Underwriters, they have not made and will not make any offer relating to the Units that would constitute an issuer free writing prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433 under the Securities Act; provided, however, that prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto. The Partnership Parties agree that each issuer free writing prospectus has complied and will comply, as the case may be, with the applicable requirements of Rules 164 and 433 under the Securities Act, including in respect of timely filing with the Commission, legending and record keeping.
(f) To furnish to you the Underwriters a copy of each proposed free writing prospectus Free Writing Prospectus to be prepared by or on behalf of, used by, or referred to by the Partnership and not to use or refer to any proposed free writing prospectus Free Writing Prospectus to which you the Underwriters reasonably object.
(ge) Not to take any action that would result in an Underwriter or the Partnership being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus Free Writing Prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(h) During the period when a prospectus relating to any of the Units is required to be delivered under the Securities Act by any Underwriter or dealer, to comply, at its own expense, with all requirements imposed by the Securities Act and the applicable rules and regulations of the Commission thereunder, so far as necessary to permit the continuance of sales of, or dealing in, the Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(if) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstancescircumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances under which they were made when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(jg) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters Underwriters, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you the Underwriters will furnish to the Partnership) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances under which they were made when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(kh) To endeavor to qualify The Partnership will arrange for the qualification of the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, that none of the CMLP Entities shall be Underwriters designate and will continue such qualifications in effect so long as required to qualify as a foreign entity or to take any action that would subject any of for the CMLP Entities to service of process in any such jurisdiction where any such entity is not presently qualified or already subject to service of process or where any such entity would be subject to taxation as a foreign entity where it is not otherwise subject to taxationdistribution.
(li) As soon as practicable, the Partnership will To make generally available to the Partnership’s security holders and to you the Underwriters as soon as practicable an earnings statement or statements covering a period of at least twelve months beginning with the first fiscal quarter of the CMLP Entities Partnership occurring after the date of this Agreement, which will shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(m) The Partnership, during the period when the Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(n) The Partnership will apply the proceeds from the sale of the Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus.
(o) To promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Units under the Securities Act.
(p) The Partnership Parties will not invest or otherwise use the proceeds received by the Partnership from its sale of the Units in such a manner as would require any of the CMLP Entities to register as an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(qj) To file with the Commission such information on Form 10-Q or Form 10K as may be required by Rule 463 under the Securities Act.
(k) The Partnership will maintain a transfer agent and, promptly notify the Underwriters if necessary under the jurisdiction Partnership ceases to be an Emerging Growth Company at any time prior to the later of formation (a) completion of the Partnership, a registrar for the Common Units.
(r) To pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Partnership’s counsel and the Partnership’s accountants in connection with the registration and delivery distribution of the Units under within the meaning of the Securities Act and all other fees or expenses (b) completion of the Restricted Period referred to in Section 2.
(l) The Partnership will use the net proceeds received by it in connection with this offering in the preparation and filing manner described in the “Use of the Registration Statement, any preliminary prospectus, Proceeds” section of the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by any of the Partnership Parties and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(j) hereof, including filing fees and the reasonable fees and disbursements of external counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of external counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Units by the FINRA, (v) all costs and expenses incident to listing the Units on the NYSE, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) the costs and expenses of the Partnership Parties relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Partnership, travel and lodging expenses of the representatives (which, for the avoidance of doubt, shall not include the Underwriters) and officers of the Partnership Parties and any such consultants, and 50% of the cost of any aircraft chartered in connection with any road show with the prior approval of the Partnership Parties (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other costs and expenses incident to the performance of the obligations of the Partnership Parties hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Units by them and any advertising expenses connected with any offers they may make.
(sm) The Partnership Parties will furnish to you duly executed “lock-up” letter agreements, each substantially in the form of Exhibit B-1 hereto, between you and any officer or director of the General Partner newly elected or appointed during the 45-day restricted period (including any extension of such period thereof) described in the two immediately following paragraphs below. Each of the Partnership Parties also covenants with each Underwriter that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC and Citigroup Global Markets Inc. on behalf of the Underwriters, it will not, during the period ending 45 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose ofnot take, directly or indirectly, any Common Units action designed to or any securities convertible into that has constituted or exercisable that could reasonably be expected to cause or exchangeable for Common Units result in the stabilization or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any manipulation of the economic consequences price of ownership any security of the Common Units, whether any such transaction described Partnership in clause (1) or (2) above is to be settled by delivery of Common Units or such other securities, in cash or otherwise or (3) file any registration statement connection with the Commission relating to the offering of any Common Units the Units.
(n) The Partnership will do and perform all things required or any securities convertible into or exercisable or exchangeable for Common Units (other than any registration statement on Form S-8). The restrictions contained in the preceding paragraph shall not apply to (a) the Units necessary to be sold hereunder, (b) the issuance done and performed under this Agreement by the Partnership of Common Units pursuant it prior to the Acquisition Agreement as described in the Registration Statement, the Time of Sale Prospectus Closing Date and the Prospectusapplicable Option Closing Date, (c) as the issuance by the Partnership of equity awards pursuant case may be, and to employee benefit plans described in the Time of Sale Prospectus, provided that either (i) such equity awards are not transferrable and the securities underlying such awards do not vest during the 45-day period, or (ii) the recipient thereof enters into a “lock-up” lock-up agreement in the form of Exhibit B-1 hereto with respect satisfy all conditions precedent to the remaining 45-day restricted period (as such period may be extended pursuant Underwriters’ obligations hereunder to such agreement), (d) purchase the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of Common Units, provided that such plan does not provide for the transfer of Common Units during the 45-day restricted period and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of a party to the a lock-up agreement or any of the Partnership Parties, or (e) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, in each case in connection with acquisitions and capital improvements that the General Partner determines will increase cash flow from operations on a per unit basis after giving effect to such issuance, provided that any recipient of such Common Units thereof enters into a “lock-up” letter agreement in the form of Exhibit B-1 hereto with respect to the remaining term of the restricted period (as such period may be extended pursuant to such agreement).
Appears in 1 contract
Samples: Underwriting Agreement (Oasis Midstream Partners LP)
Covenants of the Partnership Parties. The Partnership Parties covenant with each Underwriter as follows:
(a) To furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Section 6(i) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) If there is a post-effective amendment to the Registration Statement that is not effective under the Securities Act, to use its reasonable best efforts to cause the post-effective amendment to the Registration Statement to become effective as promptly as possible, and to notify you, promptly after it shall receive notice thereof, of the time when the post-effective amendment to the Registration Statement has become effective.
(d) To promptly advise the Underwriters of any request of the Commission for amendment of the Registration Statement or for supplement to any prospectus or for any additional information, and of the issuance by the Commission or any state or other jurisdiction or other regulatory body of any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any issuer free writing prospectus or suspending the qualification or registration of the Units for offering, issuance or sale in any jurisdiction, and of the institution or threat of any proceedings therefor, of which they shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Units; and the Partnership will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if issued, to secure the prompt removal thereof.
(e) Unless they have obtained or will obtain the prior written consent of the Underwriters, they have not made and will not make any offer relating to the Units that would constitute an issuer free writing prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433 under the Securities Act; provided, however, that prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule II hereto. The Partnership Parties agree that each issuer free writing prospectus has complied and will comply, as the case may be, with the applicable requirements of Rules 164 and 433 under the Securities Act, including in respect of timely filing with the Commission, legending and record keeping.
(f) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Partnership and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(g) Not to take any action that would result in an Underwriter or the Partnership being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(h) During the period when a prospectus relating to any of the Units is required to be delivered under the Securities Act by any Underwriter or dealer, to comply, at its own expense, with all requirements imposed by the Securities Act and the applicable rules and regulations of the Commission thereunder, so far as necessary to permit the continuance of sales of, or dealing in, the Units during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(i) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(j) If, during such period after the first date of the public offering of the Units as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Partnership) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(k) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, that none of the CMLP NRGM Entities shall be required to qualify as a foreign entity or to take any action that would subject any of the CMLP NRGM Entities to service of process in any such jurisdiction where any such entity is not presently qualified or already subject to service of process or where any such entity would be subject to taxation as a foreign entity where it is not otherwise subject to taxation.
(l) As soon as practicable, the Partnership will make generally available to the Partnership’s security holders and to you an earnings statement or statements of the CMLP NRGM Entities which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(m) The Partnership, during the period when the Prospectus is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(n) The Partnership will apply the proceeds from the sale of the Units sold by it as set forth in the description under “Use of Proceeds” in the Prospectus.
(o) To promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Units under the Securities Act.
(p) The Partnership Parties will not invest or otherwise use the proceeds received by the Partnership from its sale of the Units in such a manner as would require any of the CMLP NRGM Entities to register as an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(q) The Partnership will maintain a transfer agent and, if necessary under the jurisdiction of formation of the Partnership, a registrar for the Common Units.
(r) To pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Partnership’s counsel and the Partnership’s accountants in connection with the registration and delivery of the Units under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by any of the Partnership Parties and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Units to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Units under state securities laws and all expenses in connection with the qualification of the Units for offer and sale under state securities laws as provided in Section 6(j) hereof, including filing fees and the reasonable fees and disbursements of external counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of external counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Units by the FINRA, (v) all costs and expenses incident to listing the Units on the NYSE, (vi) the costs and charges of any transfer agent, registrar or depositary, (vii) the costs and expenses of the Partnership Parties relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Units, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Partnership, travel and lodging expenses of the representatives (which, for the avoidance of doubt, shall not include the Underwriters) and officers of the Partnership Parties and any such consultants, and 50% of the cost of any aircraft chartered in connection with any road show with the prior approval of the Partnership NRGM Parties (viii) the document production charges and expenses associated with printing this Agreement and (ix) all other costs and expenses incident to the performance of the obligations of the Partnership Parties hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Units by them and any advertising expenses connected with any offers they may make.
(s) The Partnership will furnish to you duly executed “lock-up” letter agreements, each substantially in the form of Exhibit B-1 hereto, between you and any officer or director of the General Partner newly elected or appointed during the 45the45-day restricted period (including any extension of such period thereof) described in the two immediately following paragraphs below. Each of the Partnership Parties also covenants with each Underwriter that, without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC and Citigroup Global Markets Barclays Capital Inc. on behalf of the Underwriters, it will not, during the period ending 45 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Common Units or any securities convertible into or exercisable or exchangeable for Common Units or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or such other securities, in cash or otherwise or (3) file any registration statement with the Commission relating to the offering of any Common Units or any securities convertible into or exercisable or exchangeable for Common Units (other than any registration statement on Form S-8). The restrictions contained in the preceding paragraph shall not apply to (a) the Units to be sold hereunder, (b) the issuance by the Partnership of Common Units pursuant to the Acquisition Merger Agreement as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (c) the issuance by the Partnership of equity awards pursuant to employee benefit plans described in the Time of Sale Prospectus, provided that either (i) such equity awards are not transferrable and the securities underlying such awards do not vest during the 45-day period, or (ii) the recipient thereof enters into a “lock-up” lock-up agreement in the form of Exhibit B-1 hereto with respect to the remaining 45-day restricted period (as such period may be extended pursuant to such agreement), (d) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of Common Units, provided that such plan does not provide for the transfer of Common Units during the 45-day restricted period and no public announcement or filing under the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made by or on behalf of a party to the a lock-up agreement or any of the Partnership Parties, or (e) issuances of Common Units directly to a seller of a business as part of the purchase price or a private placement, in each case in connection with acquisitions and capital improvements that the General Partner determines will increase cash flow from operations on a per unit basis after giving effect to such issuance, provided that any recipient of such Common Units thereof enters into a “lock-up” letter agreement in the form of Exhibit B-1 hereto with respect to the remaining term of the restricted period (as such period may be extended pursuant to such agreement).
Appears in 1 contract
