Free Writing Prospectus Covenants Clause Samples
The Free Writing Prospectus Covenants clause sets out the rules and obligations regarding the use and distribution of free writing prospectuses in connection with a securities offering. It typically requires the issuer and underwriters to agree on what materials can be used, mandates that all such documents comply with securities laws, and may require prior approval before dissemination. This clause ensures that all marketing and disclosure materials are accurate and legally compliant, thereby reducing the risk of regulatory violations and protecting both the issuer and investors from misleading information.
Free Writing Prospectus Covenants. The Company represents and agrees that, unless it obtains the prior consent of each Underwriter, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the Shares that would constitute an "issuer free writing prospectus," as defined in Rule 433 or that would otherwise constitute a "free writing prospectus," as defined in Rule 405. Any such free writing prospectus consented to by the Company and the Underwriters is hereinafter referred to as a "Permitted Free Writing Prospectus." The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an "issuer free writing prospectus," as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
Free Writing Prospectus Covenants. (a) The Company represents and agrees that, without the prior consent of the Representatives, which consent will not be unreasonably withheld, it has not made and will not make any offer relating to the Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, other than a Permitted Free Writing Prospectus; each Underwriter, severally and not jointly, represents and agrees that, without the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, other than a Permitted Free Writing Prospectus or a free writing prospectus that is not required to be filed by the Company pursuant to Rule 433; any such free writing prospectus (which shall include the Pricing Term Sheet), the use of which has been consented to by the Company and the Representatives, is listed on Schedule B and herein called a “Permitted Free Writing Prospectus.”
(b) The Company agrees to prepare a term sheet specifying the terms of the Offered Securities not contained in the Preliminary Prospectus, substantially in the form of Annex I hereto and approved by the Representatives, and to file such pricing term sheet pursuant to Rule 433(d) under the Securities Act within the time period prescribed by such Rule.
(c) The Company represents that it has treated or agreed that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus” as defined in Rule 433 under the Securities Act. The Company and the Underwriters have complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any free writing prospectus, including timely Commission filing, where required, and legending.
(d) The Company agrees that if at any time following issuance of a Permitted Free Writing Prospectus any event occurred or occurs as a result of which such Permitted Free Writing Prospectus would conflict with the information in the Registration Statement, the Preliminary Prospectus or the Final Prospectus, or the Time of Sale Information would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will give prompt notice thereof to the Representatives and, if reasonab...