Further Agreements of the Issuers. The Issuers agree with each of the several Initial Purchasers: (a) at any time prior to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time; (b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested; (c) prior to making any amendment or supplement to the Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review; (d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law; (e) for so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders); (f) for so long as the Securities are outstanding, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder; (g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign business organizations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction; (h) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC"); (i) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act; (j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum; (k) for a period of 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers; (l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act; (m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder; (n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities; (o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers; (p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities; (q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture; (r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d); (s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law; (t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and (u) to apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds;" and (v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCC.
Appears in 1 contract
Further Agreements of the Issuers. The Issuers agree with each Each of the several Initial PurchasersIssuers agrees:
(a) at any time prior to completion of the resale of the Securities by the Initial Purchasers, to To advise the Initial Purchasers you promptly and, if requestedrequested by you, to confirm such advice in writing, (i) of the issuance by the Commission or any state securities commission of any stop order suspending the qualification or exemption from qualification of the Notes and the Guarantees (if any) for offering or sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose by the Commission or any state securities commission or other regulatory authority, and (ii) the happening of any event which that makes any statement of a material fact made in the Preliminary Offering Memorandum or the Offering Memorandum untrue or which requires the making of any additions to or changes in the Preliminary Offering Memorandum (as amended or supplemented from time to time) Offering Memorandum in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the . The Issuers shall use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best all reasonable efforts to prevent the issuance of any such stop order preventing or order suspending the use qualification or exemption of the Preliminary Offering Memorandum Notes and the Guarantees (if any) under any state securities or the Offering Memorandum or suspending any such qualification Blue Sky laws and, if at any such suspension is issuedtime any state securities commission shall issue any stop order suspending the qualification or exemption of the Notes under any state securities or Blue Sky laws, the Issuers shall use all reasonable efforts to obtain the withdrawal or lifting thereof of such order at the earliest possible time;.
(b) To furnish to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, you without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum (Memorandum, and any amendments or supplements thereto) , as you may be reasonably requested;request. The Issuers consent to the use, in accordance with the securities or blue sky laws of the jurisdictions in which the Notes are offered by you and by dealers, of the Preliminary Offering Memorandum and the Offering Memorandum, and any amendments and supplements thereto required pursuant to this Agreement, by you in connection with the Exempt Resales that are in compliance with this Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to making the Closing Date or during the period referred to in (d) below unless you shall previously have been advised of, and shall not have reasonably objected to, such amendment or supplement within a reasonable time, but in any event not longer than three days after being furnished a copy of such amendment or supplement. The Issuers shall promptly prepare, upon any reasonable request by you, any amendment or supplement to the Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment Memorandum that may be necessary or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review;advisable in connection with Exempt Resales.
(d) ifIf, at any time after the date of this Agreement and prior to the completion of the resale distribution of the Securities by the Initial PurchasersNotes, any event shall occur or condition exist as a result of which it is necessarythat, in the opinion judgment of the Issuers or in your judgment or the judgment of counsel for the Initial Purchasers or counsel for the Issuersto you, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue makes any statement of a material fact in the Offering Memorandum untrue or omit that requires the making of any additions to state a material fact necessary or changes in the Offering Memorandum in order to make the statements thereinin the Offering Memorandum, in the light of the circumstances existing at the time it that the Offering Memorandum is delivered to a purchaserprospective Eligible Purchasers, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to the Issuers will promptly notify you of such event and prepare such an appropriate amendment or supplement as may be necessary to correct such untrue statement or omission or the Offering Memorandum so that, at the time that the Offering MemorandumMemorandum is delivered to prospective Eligible Purchasers, (i) the Offering Memorandum as so amended or supplementedsupplemented will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading and (ii) the Offering Memorandum will comply with applicable law;.
(e) for so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders Promptly from time to time of the Securities and prospective purchasers of the Securities designated by to take such holders);
(f) for so long action as the Securities are outstanding, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers you may reasonably request to qualify the Securities Notes for offering and sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers you may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided request (provided, however, that the Company and its subsidiaries Issuers shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are it is not now so qualified or to file a take any action that would subject it to general consent to service of process in any jurisdiction;jurisdiction in which it is not now so subject) and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes.
(hf) To use all best efforts to assist the Initial Purchasers in arranging for the Securities do and perform all things required to be designated Private Offerings, Resales done and Trading through Automated Linkages performed under this Agreement by it prior to or after the Closing Date and to satisfy all conditions precedent on its part to the delivery of the Notes.
("PORTAL"g) Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading Except as contemplated in the PORTAL Market and for the Securities Registration Rights Agreement, not to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could that would be integrated with the sale of the Securities Notes in a manner which that would require the registration of the Securities under the Securities Act;Act of the sale to you or the Eligible Purchasers of the Notes.
(jh) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not Not to, and to cause not permit any of its affiliates not to, resell any Notes that have been acquired by any of them, except in accordance with the Securities Act and the rules and regulations of the Commission.
(i) Not to, and to not to authorize permit any of its affiliates or knowingly permit any person acting on its or their behalf to, solicit any offer to buy or offer to sell the Securities by means of engage in any form of general solicitation or general advertising (within the meaning of Regulation D D) in connection with the offering of the Notes.
(j) Not to, and to not permit any of its affiliates or any person acting on its or their behalf to, engage in any manner involving a public offering directed selling efforts within the meaning of Section 4(2Rule 902(b) of Regulation S with respect to the Securities Act; Notes, and to, and require its affiliates or any person acting on its or their behalf to, comply with the offering restrictions requirements of Regulation S in connection with the offering of the Notes outside of the United States.
(k) Not to, and to not permit any of its subsidiaries to offer, sell, contract to sell or otherwise dispose oftake, directly or indirectly, any securities under circumstances where such offeraction designed to cause or result in, saleor which has constituted or which might reasonably be expected to constitute, contract the stabilization or disposition would cause manipulation of the exemption afforded by price of the Notes to facilitate the sale or resale of the Notes.
(l) For so long as any Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) or, if earlier, until two years after the Closing Date, and during any period in which the Issuers or the Guarantors, if any, are not subject to Section 4(213 or 15(d) of the Exchange Act, to make available upon request to any registered holder or beneficial owner of Notes in connection with any sale thereof and any prospective purchaser of Notes from such registered holder or beneficial owner upon request of such holder, the information required by Rule 144A(d)(4) under the Securities Act Act.
(m) To use its best efforts to cease permit the Notes to be applicable eligible for trading in The PORTAL/SM/ Market ("PORTAL"), a subsidiary of The Nasdaq Stock Market, Inc., and to permit the offering Notes to be eligible for clearance and settlement through DTC.
(n) To apply the net proceeds from the sale of the Securities Notes substantially in accordance with the description set forth in the Offering Memorandum under the section entitled "Use of Proceeds."
(o) To take such steps as contemplated by this Agreement shall be necessary to ensure that neither of the Issuers shall become an "investment company" within the meaning of such term under the Investment Company Act and the Offering Memorandum;rules and regulations of the Commission thereunder.
(kp) Except for borrowings under the Credit Agreement, to be dated as of June 13, 2003, among the Issuers and the lenders named therein (the "Credit Facility"), for a period of 180 days from the date of the Offering Memorandum, not to offer for saleto, directly or indirectly, sell, contract to sell sell, grant any option to purchase, issue any instrument convertible into or exchangeable for, or otherwise transfer or dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued of the Issuers in a public or guaranteed by private offering for cash having a maturity of more than one year from the Company date of issue of such securities, except (i) for the Exchange Notes and the Exchange Note Guarantees (if any) in connection with the Exchange Offer or any of its subsidiaries (other than the Securitiesii) without with the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to which consent shall not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCCunreasonably withheld.
Appears in 1 contract
Samples: Purchase Agreement (CBD Media LLC)
Further Agreements of the Issuers. The Issuers jointly and severally agree with each of the several Initial PurchasersPurchaser as set forth below in this Section 5:
(a) at any time prior The Issuers will furnish to completion of the resale of the Securities by the Initial Purchasers, to advise and those persons identified by the Initial Purchasers promptly and, if requested, confirm such advice in writing, of to the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial PurchasersIssuers, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Final Memorandum (and any supplements and amendments or supplements thereto) thereto as they may be reasonably requested;request.
(cb) prior Prior to making any amendment or supplement to the Offering Preliminary Memorandum or the Final Memorandum, to the Issuers shall furnish a copy thereof to each of the Initial Purchasers and one counsel for to the Initial Purchasers and will not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review;. The Issuers consent to the use of the Preliminary Memorandum and the Final Memorandum, and any amendments and supplements thereto required pursuant hereto, by the Initial Purchaser in connection with Exempt Resales.
(dc) ifIf, at any time prior to completion of the resale distribution of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Final Memorandum in order that the Offering Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleadingan Eligible Purchaser, or if it is necessary to amend or supplement the Offering Final Memorandum to comply with applicable law, to the Issuers will (i) notify the Initial Purchasers, (ii) promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Final Memorandum, as so amended or supplemented, will comply with applicable law;law and (iii) furnish to the Initial Purchasers such number of copies of such amendment or supplement as they may reasonably request.
(ed) for so So long as the any Securities are outstanding and are "restricted securitiesRestricted Securities" within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Exchange Act of 1934, as amended (the "Exchange Act"), to the Issuers will furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);.
(fe) for so So long as the Securities and Exchange Securities are outstanding, to the Issuers will furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Securities and Exchange Commission ("SEC") on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the CommissionSEC, and such other documents, reports and information as shall be furnished by the Company Issuers to the Trustee or to the holders of the Securities and Exchange Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;Indenture.
(gf) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request The Issuers will use their best efforts to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably designate and to continue such qualifications in effect for so long as reasonably required for the resale distribution of the Securities; and to . The Issuers will also arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that . Notwithstanding the Company and its subsidiaries foregoing, the Issuers shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are not so qualified or to file a general consent to service of process or to subject themselves to taxation in respect of doing business in any jurisdiction;jurisdiction in which they are not otherwise subject.
(hg) The Issuers will use their best efforts to assist the Initial Purchasers in arranging for permit the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") NASD relating to trading in the PORTAL Market market and for to permit the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");.
(ih) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except Except following the effectiveness of any Registration Statement (as defined in the Exchange Offer Registration Rights Agreement) and except for such offers as may be made as a result of, or subsequent to, filing such Registration Statement or amendments thereto prior to the Shelf Registration Statementeffectiveness thereof, as the case may be, not toIssuers will not, and to will cause its affiliates their Affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause .
(i) The Company will apply the exemption afforded by Section 4(2) of net proceeds from the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and set forth in the Offering Memorandum;Final Memorandum under "Use of Proceeds."
(j) The Issuers will take such steps as shall be necessary to ensure that neither the Company nor any of its subsidiaries shall become (i) an "investment company" within the meaning of the Investment Company Act or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a holding company within the meaning of the Public Utility Holding Company Act.
(k) for a period of 180 days from The Company and its subsidiaries will not, and will cause their Affiliates not to, take any action that would require the date registration under the Securities Act of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of its subsidiaries Securities (other than pursuant to the SecuritiesRegistration Rights Agreement) including, without limitation, (i) engaging in any directed selling efforts (within the prior written consent meaning of Regulation S) during any applicable restricted period or (ii) offering any other securities in a manner that would be integrated with the Initial Purchasers;transactions contemplated hereby.
(l) during Prior to the period from consummation of the Closing Date until two years after Exchange Offer or the Closing Dateeffectiveness of an applicable shelf registration statement if, without in the prior written consent reasonable judgment of the Initial Purchasers, not the Initial Purchasers or any of their Affiliates are required to deliver an offering memorandum in connection with sales of, or market-making activities with respect to, and not permit any the Securities, (A) the Issuers will periodically amend or supplement the Final Memorandum so that the information contained in the Final Memorandum complies with the requirements of its affiliates (as defined in Rule 144 under 144A of the Securities Act, (B) tothe Issuers will amend or supplement the Final Memorandum when necessary to reflect any material changes in the information provided therein so that the Final Memorandum will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, resell any in light of the Securities circumstances existing as of the date the Final Memorandum is so delivered, not misleading and (C) the Issuers will provide the Initial Purchasers with copies of each such amended or supplemented Final Memorandum, as the Initial Purchasers may reasonably request. The Issuers hereby expressly acknowledge that have been reacquired by themthe indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each offering memorandum, except for Securities purchased by the Company registration statement, prospectus, amendment or any of its affiliates and resold supplement referred to in a transaction registered under the Securities Act;this Section 5(l). 18
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required Not to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to resist actively resist any attempts to claim, the benefit of any usury laws against the holders of the any Securities; and.
(un) To cause the Exchange Offer to apply be made in the net proceeds from the sale of appropriate form to permit registered Exchange Securities to be offered in exchange for the Securities as and to comply with all applicable federal and state securities laws in connection with the Exchange Offer.
(o) To comply with all of their agreements set forth in the Offering Memorandum under Registration Rights Agreement and all agreements set forth in the heading representation letters of the Issuers to DTC relating to the approval of the Notes by DTC for "Use of Proceeds;book-entry" andtransfer.
(vp) subsequent The Issuers will do all things reasonably necessary to satisfy the execution of this Agreement, to file certain customary notifications or documents with the FCCclosing conditions set forth in Section 7 hereof.
Appears in 1 contract
Further Agreements of the Issuers. The Issuers Company and the Trust, jointly and severally, agree with each of the several Initial Purchasersto use their reasonable best efforts:
(a) To prepare any registration statement or prospectus, or if none is required, a remarketing memorandum, including any preliminary remarketing memorandum, in each case, in a form approved by the Remarketing Agent, in connection with the Remarketing, and to file any such prospectus pursuant to the Securities Act within the period required by the Rules and Regulations; to make no further amendment or any supplement to the Registration Statement, Prospectus or the Remarketing Materials which shall be reasonably disapproved by the Remarketing Agent promptly after reasonably notice thereof; to advise the Remarketing Agent, promptly after either of them receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus (or the Remarketing Materials) or any amended Prospectus (or the Remarketing Materials) has been filed and to furnish the Remarketing Agent with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of Remarketed Capital Securities; to advise the Remarketing Agent, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order 16 119 preventing or suspending the use of the Prospectus or the Remarketing Materials, of the suspension of the qualification of the Remarketed Capital Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or the Remarketing Materials or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Prospectus or the Remarketing Materials or suspending any such qualification, to use promptly its best efforts to obtain the withdrawal of such order.
(b) To furnish promptly to the Remarketing Agent and to counsel for the Remarketing Agent a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(c) Prior to 10:00 a.m. New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to deliver promptly to the Remarketing Agent in New York City such number of the following documents as the Remarketing Agent shall request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Declaration, the Purchase Contract Agreement and the Indenture, (ii) the Prospectus (or the Remarketing Materials) and any amended or supplemented Prospectus (or the Remarketing Materials), (iii) any document incorporated by reference in the Prospectus and the Remarketing Materials (excluding exhibits thereto) and (iv) any Remarketing Materials; and, if the delivery of a prospectus is required at any time prior to completion of in connection with the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, Remarketing and if requested, confirm at such advice in writing, of the happening of time any event shall have occurred as a result of which makes the Prospectus or the Remarketing Materials as then amended or supplemented would include any untrue statement of a material fact made in the Offering Memorandum untrue or which requires the making of omit to state any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum made when such Prospectus or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without chargeRemarketing Materials, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering Memorandumapplicable, to furnish a copy thereof to each of the Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaserdelivered, not misleading, or if for any other reason it is shall be necessary during such same period to amend or supplement the Offering Memorandum Prospectus and the Remarketing Materials or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with applicable lawthe Securities act or the Exchange Act, to promptly notify the Remarketing Agent and, upon its request, to file such document and to prepare such amendment and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing Agent may from time to time request of an amended or supplement as may be necessary to supplemented Prospectus which will correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;effect such compliance.
(ed) for so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company To file promptly with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company any amendment to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign business organizations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates not to, and not to authorize Prospectus or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable supplement to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;
(k) for a period of 180 days from the date of the Offering MemorandumProspectus that may, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counselCompany or the Remarketing Agent, and after notification to the Initial Purchasers, such press release or communication is be required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to apply the net proceeds from the sale of the Securities as set forth in Act or requested by the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCCCommission.
Appears in 1 contract
Further Agreements of the Issuers. The Issuers agree Each of the Issuers, jointly and severally, agrees with each of the several Initial Purchasers:
(a) at any time prior to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly upon receipt of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or or, to the best knowledge of the Company, the threatening of any proceeding for any such purpose; and to use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review, which shall not in any case be longer than 10 business days after receipt of such copy;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the IssuersCompany, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for so long as a period of three years following the Securities are outstandingClosing Date, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided PROVIDED that in no event shall any of the Company and its subsidiaries shall not Issuers be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are it is not then so qualified or to file a take any action which would subject it to general consent to service of process in any jurisdictionaction other than one arising out of the offering of the Securities in any such jurisdiction where it is not then so subject, or to subject itself to the payment of taxes in excess of a nominal amount in any jurisdiction where it is not then so subject;
(h) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities, the Exchange Securities or the Private Exchange Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D D, by means of any directed selling efforts (as defined in Regulation S) in connection with the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities to the Initial Purchasers as contemplated by this Agreement and the Offering Memorandum;
(k) for a period of 180 90 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of its subsidiaries Issuers (other than the Securities, the Exchange Securities, the Private Exchange Securities and debt incurred in the ordinary course of business) without the prior written consent of the Initial Purchasers;
(l) during until consummation of the period from the Closing Date until two years after the Closing DateExchange Offer, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities, the Exchange Securities or the Private Exchange Securities that have been reacquired by them, except for Securities any such securities purchased by the Company Issuers or any of its their affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(on) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(o) to furnish to each of the Initial Purchasers on the date hereof a copy of the independent accountants' report included in the Offering Memorandum signed by the accountants rendering such report;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its reasonable best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) not to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) not to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to any of the Issuers, their condition, its condition (financial or otherwise, ) or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, law or the benefit rules of any usury laws against the holders of the Securitiesnational securities exchange or inter-dealer quotation system; and
(ut) to apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCC."
Appears in 1 contract
Further Agreements of the Issuers. The Issuers jointly and severally agree with each of the several Initial PurchasersPurchaser as set forth below in this Section 5:
(a) at any time prior The Issuers will furnish to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Final Memorandum and the Offering Memorandum (any supplements and any amendments or supplements thereto) thereto as they may be reasonably requested;request.
(cb) prior Prior to making any amendment or supplement to the Offering Preliminary Memorandum or the Final Memorandum, to the Issuers shall furnish a copy thereof to each of the Initial Purchasers and one counsel for to the Initial Purchasers and will not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review;.
(dc) ifIf, at any time prior to completion of the resale distribution of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Final Memorandum in order that the Offering Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Final Memorandum to comply with applicable law, to the Issuers will promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Final Memorandum, as so amended or supplemented, will comply with applicable law;law and furnish to the Initial Purchasers such number of copies of such amendment or supplement as they may reasonably request.
(ed) for so So long as the any Securities are outstanding and are "restricted securitiesRestricted Securities" within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Exchange Act of 1934, as amended (the "Exchange Act"), to the Issuers will furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);.
(fe) for so So long as the Securities and Exchange Securities are outstanding, to the Issuers will furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Securities and Exchange Commission ("SEC") on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the CommissionSEC, and such other documents, reports and information as shall be furnished by the Company Issuers to the Trustee or to the holders of the Securities and Exchange Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;Indenture.
(gf) The Issuers will use their best efforts at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably Purchasers' reasonable request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably designate and to continue such qualifications in effect for so long as reasonably required for the resale distribution of the Securities; and to . The Issuers will also arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that . Notwithstanding the Company and its subsidiaries foregoing, the Issuers shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are not so qualified or to file a general consent to service of process or to subject themselves to taxation in respect of doing business in any jurisdiction;jurisdiction in which it is not otherwise subject.
(hg) The Issuers will use their best efforts to assist the Initial Purchasers in arranging for permit the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market market and for to permit the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");.
(ih) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except Except following the effectiveness of any Registration Statement (as defined in the Exchange Offer Registration Rights Agreement) and except for such offers as may be made as a result of, or subsequent to, filing such Registration Statement or amendments thereto prior to the Shelf Registration Statementeffectiveness thereof, as the case may be, not toIssuers will not, and to will cause its their affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;.
(ki) for a period of 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the The Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to will apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum Final Memorandum.
(j) The Issuers will take such steps as shall be necessary to ensure that neither the Company nor any of its subsidiaries shall become (i) an "investment company" within the meaning of the Investment Company Act, or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a holding company within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(k) The Company and its subsidiaries will not, and will cause their affiliates not to, take any action that would require the registration under the heading "Use Securities Act of Proceeds;" andthe Securities (other than pursuant to the Registration Rights Agreement) including, without limitation, (i) engaging in any directed selling efforts (within the meaning of Regulation S) during any applicable restricted period or (ii) offering any other securities in a manner that would be integrated with the transactions contemplated hereby.
(vl) subsequent The Issuers will do all things reasonably necessary to satisfy the execution of this Agreement, to file certain customary notifications or documents with the FCCclosing conditions set forth in Section 7 hereof.
Appears in 1 contract
Samples: Purchase Agreement (Flo Fill Co Inc)
Further Agreements of the Issuers. The Issuers jointly and severally agree with each of the several Initial PurchasersPurchaser as set forth below in this Section 5:
(a) at any time prior The Issuers will furnish to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Final Memorandum and the Offering Memorandum (any supplements and any amendments or supplements thereto) thereto as they may be reasonably requested;request.
(cb) prior Prior to making any amendment or supplement to the Offering Preliminary Memorandum or the Final Memorandum, to the Issuers shall furnish a copy thereof to each of the Initial Purchasers and one counsel for to the Initial Purchasers and will not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to of review;.
(dc) ifIf, at any time prior to completion of the resale distribution of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Final Memorandum in order that the Offering Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Final Memorandum to comply with applicable law, to the Issuers will promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Final Memorandum, as so amended or supplemented, will comply with applicable law;law and furnish to the Initial Purchasers such number of copies of such amendment or supplement as they may reasonably request.
(ed) for so So long as the any Securities are outstanding and are "restricted securitiesRestricted Securities" within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Exchange Act of 1934, as amended (the "Exchange Act"), to the Issuers will furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);.
(fe) for so So long as the Securities and Exchange Securities are outstanding, to the Issuers will furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that the Company and its subsidiaries shall not be obligated to qualify as foreign business organizations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;
(k) for a period of 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCC.
Appears in 1 contract
Further Agreements of the Issuers. The Issuers jointly and severally agree with each of the several Initial PurchasersPurchaser as set forth below in this Section 5:
(a) at any time prior The Issuers will furnish to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Final Memorandum (and any supplements and amendments or supplements thereto) thereto as they may be reasonably requested;request.
(cb) prior Prior to making any amendment or supplement to the Offering Final Memorandum, to the Issuers shall furnish a copy thereof to each of the Initial Purchasers and one counsel for to the Initial Purchasers Purchasers, and the Issuers will not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to of review;.
(dc) ifIf, at any time prior to completion of the resale distribution of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Final Memorandum in order that the Offering Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Final Memorandum to comply with applicable law, to the Issuers will promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Final Memorandum, as so amended or supplemented, will comply with applicable law;law and furnish to the Initial Purchasers such number of copies of such amendment or supplement as they may reasonably request.
(ed) for so So long as the any Securities are outstanding and are "restricted securitiesRestricted Securities" within the meaning of Rule 144(a)(3) under the Securities Act, and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Securities Exchange Act, of 1934, as amended (the "Exchange Act"), the Issuers will furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);.
(fe) for so So long as the Securities and Exchange Securities are outstanding, to the Issuers will furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Securities and Exchange Commission ("SEC") on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the CommissionSEC, and such other documents, reports and information as shall be required to be furnished by the Company Issuers to the Trustee or to the holders of the Securities and Exchange Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;Indenture.
(gf) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request The Issuers will use their best efforts to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably designate and to continue such qualifications in effect for so long as is reasonably required for the resale distribution of the Securities; and to . The Issuers will also arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that . Notwithstanding the Company and its subsidiaries foregoing, the Issuers shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are it is not so qualified (or, in the case of the Company, in which it was not so qualified immediately prior to its reincorporation as a Delaware corporation) or to file a general consent to service of process or to subject itself to taxation in respect of doing business in any jurisdiction;jurisdiction in which it is not otherwise subject.
(hg) The Issuers will use their best efforts to assist the Initial Purchasers in arranging for permit the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market market and for to permit the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");.
(ih) not toThe Issuers will not, and to will cause its affiliates their Affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which in a transaction that could be integrated with the sale of the Securities in a manner which would require the registration of the Securities under the Securities Act;Act of the Securities.
(ji) except Except following the effectiveness of any Registration Statement (as defined in the Exchange Offer Registration Rights Agreement) and except for such offers as may be made as a result of, or subsequent to, filing such Registration Statement or amendments thereto prior to the Shelf Registration Statementeffectiveness thereof, as the case may be, not toIssuers will not, and to will cause its their affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;.
(kj) for a period of 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the The Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to will apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum Final Memorandum.
(k) The Issuers will take such steps as shall be necessary to ensure that neither the Company nor any of its subsidiaries shall become an "investment company" within the meaning of the Investment Company Act, or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a holding company within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(l) The Issuers will not, and will cause their Affiliates not to, take any actions which would require the registration under the heading "Use Securities Act of Proceeds;" andthe Securities (other than pursuant to the Registration Rights Agreement).
(vm) subsequent Prior to the execution consummation of this Agreementthe Exchange Offer or the effectiveness of an applicable shelf registration statement, if, in the reasonable judgment of the Initial Purchasers, the Initial Purchasers or any of their Affiliates are required to file certain customary notifications deliver an offering memorandum in connection with sales of, or documents market-making activities with respect to, the Securities, (A) the Issuers will periodically amend or supplement the Final Memorandum so that the information contained in the Final Memorandum complies with the FCCrequirements of Rule 144A of the Securities Act, (B) the Issuers will amend or supplement the Final Memorandum when necessary to reflect any material changes in the information provided therein so that the Final Memorandum will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing as of the date the Final Memorandum is so delivered, not misleading and (C) the Issuers will provide the Initial Purchasers with copies of each such amended or supplemented Final Memorandum, as the Initial Purchasers may reasonably request. The Issuers hereby expressly acknowledge that the indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each offering memorandum, registration statement, prospectus, amendment or supplement referred to in this Section 5(m).
(n) If, as a result of its reincorporation as a Delaware corporation, the Company has ceased to be qualified to do business as a foreign corporation in any jurisdiction in which it owns or leases properties or in which the conduct of its business requires such qualification, the Company will promptly seek to so qualify to do business in such jurisdictions.
(o) The Issuers will do all things necessary to satisfy the closing conditions set forth in Section 7 hereof.
Appears in 1 contract
Samples: Purchase Agreement (Amcraft Building Products Co Inc)
Further Agreements of the Issuers. The Issuers agree with each of the several Initial Purchasersagree:
(a) To prepare the Final 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 10:00 A.M., New York City time, on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement, the Final Prospectus or any Interim Prospectus except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Final Prospectus or any amended Final Prospectus has been filed and to furnish the Underwriters with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Issuers with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Final Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the PIES; 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 Final Prospectus or any Interim Prospectus, of the suspension of the qualification of the PIES for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Final Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Final Prospectus or suspending any such qualification, to use promptly their best efforts to obtain its withdrawal.
(b) To furnish promptly to the Underwriters and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriters in New York City such number of the following documents as the Underwriters shall request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement, the Indenture, the Amended Declaration, the Guarantee Agreement, the Purchase Contract Agreement, the Pledge Agreement, the Support Agreement and the Remarketing Agreement) and, (ii) the Final Prospectus (not later than 10:00 A.M., New York City time, of the day following the execution and delivery of this Agreement) and any amended or supplemented Final Prospectus (not later than 10:00 A.M., New York City time, on the day following the date of such amendment or supplement) and (iii) any document incorporated by reference in any Interim Prospectus or Final Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time prior to completion after the date hereof in connection with the offering or sale of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, PIES (or any other securities relating thereto) and if requested, confirm at such advice in writing, of the happening of time any event shall have occurred as a result of which makes the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact made in the Offering Memorandum untrue or which requires the making of omit to state any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) material fact necessary in order to make the statements therein, in the light of the circumstances under which they were mademade when the Final Prospectus is delivered, not misleading; , or, if for any other reason it shall be necessary during such same period to advise amend or supplement the Initial Purchasers promptly of Final Prospectus or to file under the Exchange Act any document incorporated by reference in the Final Prospectus in order preventing to comply with the Securities Act, the Exchange Act or suspending the use Trust Indenture Act, to notify the Underwriters and to prepare and to file such amendment, supplement or document, to cause any amendment of the Preliminary Offering Memorandum or Registration Statement containing an amended Final Prospectus to be made effective as soon as possible and to prepare and, at any time prior to the Offering Memorandumexpiration of nine months after the date hereof, of furnish, without charge (and at any suspension time thereafter furnish at the expense of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; Underwriters), to each Underwriter and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, dealer in securities as many copies as the Underwriters may from time to time request of an amended or supplemented Final Prospectus which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the Registration Statement or the Final Prospectus or any supplement to the Final Prospectus that may, in the judgment of the Preliminary Offering Memorandum and Company or the Offering Memorandum (and any amendments Underwriters, be required by the Securities Act or supplements thereto) as may be reasonably requested;requested by the Commission.
(ce) prior Prior to making filing with the Commission any amendment to the Registration Statement or supplement to the Offering MemorandumFinal Prospectus or any document incorporated by reference in the Final Prospectus, to furnish a copy thereof to each of the Initial Purchasers Underwriters and one counsel for the Initial Purchasers Underwriters; and not to effect file any such amendment or supplement which shall be disapproved by the Underwriters promptly after reasonable notice.
(f) As soon as practicable to which the Initial Purchasers shall reasonably object by notice make generally available to the Company after a reasonable period Company's security holders and to review;
(d) if, at any time prior deliver to completion the Underwriters an earnings statement of the resale Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company, Rule 158).
(g) During a period of five years following the effective date of the Registration Statement, to deliver to the Underwriters copies of all reports or other communications (financial or other) furnished to shareholders of the Company, and deliver to the Underwriters (i) as soon as they are available, copies of any reports and financial statements furnished to or filed by the Initial Purchasers, Company or Capital Markets with the Commission or any event shall occur national securities exchange on which the PIES or condition exist as a result any class of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light securities of the circumstances existing at Company or Capital Markets is listed; and (ii) such additional information concerning the time it is delivered to a purchaser, not misleading, business and financial condition of the Company or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long Capital Markets as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders Underwriters may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Securities Company and prospective purchasers of the Securities designated by such holders);
(f) for so long as the Securities its subsidiaries are outstanding, to furnish consolidated in reports furnished to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee Company's shareholders generally or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;Commission).
(gh) at any time prior to completion of the resale of the Securities, to promptly take Promptly from time to time to take such actions action as the Initial Purchasers Underwriters may reasonably request to qualify the Securities Debentures, the Trust Preferred Securities, the Guarantees, the Purchase Contracts, the Common Stock, the Corporate PIES and the obligations of the Company pursuant to the Support Agreement for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Underwriters may designate request and to continue comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect such jurisdictions for so as long as required for may be necessary to complete the resale distribution of the Debentures, the Trust Preferred Securities; , the Guarantees, the Purchase Contracts, the Common Stock, the Corporate PIES and to arrange for the determination obligations of the eligibility for investment of Company pursuant to the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably requestSupport Agreement; provided that in connection therewith, neither the Company and its subsidiaries nor Capital Markets nor the Trust, shall not be obligated required to qualify as a foreign business organizations in any jurisdiction in which they are not so qualified corporation or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");.
(i) The Company, Capital Markets and the Trust shall not to(i) directly or indirectly, and to cause its affiliates not tooffer, pledge, sell, offer for sale contract to sell, sell any option or solicit offers contract to buy purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise negotiate in respect transfer or dispose of any security (as such term is defined in the PIES, Common Stock, Purchase Contracts, Trust Preferred Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration StatementDebentures, as the case may be, not toor any securities of the Company, and Capital Markets or the Trust similar to cause its affiliates not tothe PIES, and not to authorize Common Stock, Purchase Contracts, Trust Preferred Securities or knowingly permit Debentures, or any person acting on their behalf tosecurity convertible into or exercisable or exchangeable for PIES, solicit Common Stock, Purchase Contracts, Trust Preferred Securities or Debentures, or file any offer to buy or offer to sell registration statement under the Securities by means Act with respect to any of the foregoing or (ii) enter into any form of general solicitation swap or general advertising within the meaning of Regulation D any other agreement or any transaction that transfers, in whole or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose ofpart, directly or indirectly, the economic consequence of ownership of the PIES, Common Stock, Purchase Contracts, Trust Preferred Securities or Debentures, or any securities under circumstances where convertible into or exercisable or exchangeable for PIES, Common Stock, Purchase Contracts, Trust Preferred Securities or Debentures, whether any such offer, sale, contract swap or disposition would cause the exemption afforded by Section 4(2transaction described in clause (i) of the Securities Act to cease or (ii) above is to be applicable to the offering and sale settled by delivery of the Securities as contemplated by this Agreement and the Offering Memorandum;
(k) PIES, Common Stock, Purchase Contracts, Trust Preferred Securities, Debentures or such other securities, in cash or otherwise, for a period of 180 90 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of its subsidiaries (other than the Securities) hereof without the prior written consent of the Initial Purchasers;
Xxxxxx Brothers Inc., other than (li) during the period from the Closing Date until two years after the Closing Datepursuant to this Agreement, without the prior written consent (ii) Treasury PIES or Corporate PIES to be created or recreated upon substitution of pledged securities or shares of Common Stock issuable upon early settlement of the Initial PurchasersCorporate PIES or Treasury PIES, not to, and not permit (iii) any shares of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased Common Stock issued by the Company upon exercise of an option, warrant, or the conversion of a security described herein, (iv) any shares of its affiliates and resold Common Stock issued, or options to purchase such shares granted, pursuant to existing employee benefit plans described in a transaction the Final Prospectus, (v) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan or (vi) any medium-term notes registered under the Securities Act;Registration Statement as of the date hereof..
(mj) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to To use its their best efforts to satisfy all conditions precedent on its part complete the listing of the Corporate PIES and the Common Stock to be issued and sold pursuant to the delivery Purchase Contracts on the New York Stock Exchange, Inc., subject only to official notice of the Securities;issuance and evidence of satisfactory distribution.
(qk) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to apply To use the net proceeds received by it from the sale of the Securities as set forth PIES pursuant to this Agreement in the Offering Memorandum manner specified in the Final Prospectus under the heading caption "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCC."
Appears in 1 contract
Further Agreements of the Issuers. The Issuers jointly and severally agree with each of the several Initial PurchasersPurchaser as set forth below in this Section 5:
(a) at any time prior The Issuers will furnish to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial PurchasersPurchaser, without charge, as many copies of the Preliminary Offering Final Memorandum and the Offering Memorandum (any supplements and any amendments or supplements thereto) thereto as it may be reasonably requested;request.
(cb) prior Prior to making any amendment or supplement to the Offering Preliminary Memorandum or the Final Memorandum, to the Issuers shall furnish a copy thereof to each of the Initial Purchasers Purchaser and one counsel for to the Initial Purchasers Purchaser and will not to effect any such amendment or supplement to which the Initial Purchasers Purchaser shall reasonably object by notice to the Company after a reasonable period to review;.
(dc) ifIf, at any time prior to completion of the resale distribution of the Securities by the Initial PurchasersPurchaser, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers Purchaser or counsel for the Issuers, to amend or supplement the Offering Final Memorandum in order that the Offering Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Final Memorandum to comply with applicable law, to the Issuers will promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Final Memorandum, as so amended or supplemented, will comply with applicable law;law and furnish to the Initial Purchaser such number of copies of such amendment or supplement as it may reasonably request.
(ed) for so So long as the any Securities are outstanding and are "restricted securitiesRestricted Securities" within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Exchange Act of 1934, as amended (the "Exchange Act"), to the Issuers will furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);.
(fe) for so So long as the Securities and Exchange Securities are outstanding, to the Issuers will furnish to the Initial Purchasers Purchaser copies of any annual reports, quarterly reports and current reports filed by the Company with the Securities and Exchange Commission ("SEC") on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the CommissionSEC, and such other documents, reports and information as shall be furnished by the Company Issuers to the Trustee or to the holders of the Securities and Exchange Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;Indenture.
(gf) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request The Issuers will use their best efforts to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate Purchaser reasonably designates and to continue such qualifications in effect for so long as reasonably required for the resale distribution of the Securities; and to . The Issuers will also arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may Purchaser reasonably request; provided that requests. Notwithstanding the Company and its subsidiaries foregoing, neither of the Issuers shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are it is not so qualified or to file a general consent to service of process or to subject itself to taxation in respect of doing business in any jurisdiction;jurisdiction in which it is not otherwise subject.
(hg) The Issuers will use their best efforts to assist the Initial Purchasers in arranging for permit the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market market and for to permit the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");.
(ih) not toThe Issuers will not, and to will cause its affiliates their Affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which in a transaction that could be integrated with the sale of the Securities in a manner which would require the registration of the Securities under the Securities Act;Act of the Securities.
(ji) except Except following the effectiveness of any Registration Statement (as defined in the Exchange Offer Registration Rights Agreement) and except for such offers as may be made as a result of, or subsequent to, filing such Registration Statement or amendments thereto prior to the Shelf Registration Statementeffectiveness thereof, as the case may be, not toIssuers will not, and to will cause its their affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2. (j) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;
(k) for a period of 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the The Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to will apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCCFinal Memorandum.
Appears in 1 contract
Samples: Purchase Agreement (Delta Mills Inc)
Further Agreements of the Issuers. The Issuers jointly and severally agree with each of the several Initial PurchasersPurchaser as set forth below in this Section 5:
(a) at any time prior The Issuers will furnish to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Final Memorandum and the Offering Memorandum (any supplements and any amendments or supplements thereto) thereto as they may be reasonably requested;request.
(cb) prior Prior to making any amendment or supplement to the Offering Preliminary Memorandum or the Final Memorandum, to the Issuers shall furnish a copy thereof to each of the Initial Purchasers and one counsel for to the Initial Purchasers and will not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by written notice to the Company after a reasonable period to review;.
(dc) ifIf, at any time prior to completion of the resale initial distribution of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Final Memorandum in order that the Offering Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Final Memorandum to comply with applicable law, to the Issuers will promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Final Memorandum, as so amended or supplemented, will comply with applicable law;law and furnish to the Initial Purchasers such number of copies of such amendment or supplement as they may reasonably request. Each Initial Purchaser agrees upon receipt of written notice from the Issuers to suspend use of the Final Memorandum until the Issuers have amended or supplemented the Final Memorandum.
(ed) for so long Except during any period in which the Issuers are subject to Section 13 or 15(d) of the Exchange Act of 1934, as amended (the Securities are outstanding "Exchange Act"), and are "restricted securities" within in compliance with the meaning filing requirements of Rule 144(a)(3) under the Securities Exchange Act, to the Issuers will furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);.
(fe) for so So long as the Securities and Exchange Securities are outstanding, to the Issuers will furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Securities and Exchange Commission ("SEC") on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the CommissionSEC, and such other documents, reports and information as shall be furnished by the Company Issuers to the Trustee or to the holders of the Securities and Exchange Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;Indenture.
(gf) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request The Issuers will use their best efforts to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably designate and to continue such qualifications in effect for so long as reasonably required for the resale distribution of the Securities; and to arrange for . Notwithstanding the determination of foregoing, the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that the Company and its subsidiaries Issuers shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are not so qualified or to file a general consent to service of process or to subject themselves to taxation in respect of doing business in any jurisdiction;jurisdiction in which it is not otherwise subject.
(hg) The Issuers will use their best efforts to assist the Initial Purchasers in arranging for permit the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market market and for to permit the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");.
(ih) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except Except following the effectiveness of any Registration Statement (as defined in the Exchange Offer Registration Rights Agreement) and except for such offers as may be made as a result of, or subsequent to, filing such Registration Statement or amendments thereto prior to the Shelf Registration Statementeffectiveness thereof, as the case may be, not toIssuers will not, and to will cause its their affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;.
(ki) for a period of 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the The Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to will apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum Final Memorandum.
(j) The Issuers will take such steps as shall be necessary to ensure that neither the Company nor any of its subsidiaries shall become (i) an "investment company" within the meaning of the Investment Company Act, or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a holding company within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(k) The Company and its subsidiaries will not, and will cause their affiliates not to, take any action that would require the registration under the heading "Use Securities Act of Proceeds;" andthe Securities (other than pursuant to the Registration Rights Agreement) including, without limitation, (i) engaging in any directed selling efforts (within the meaning of Regulation S) during any applicable restricted period or (ii) offering any other securities in a manner that would be integrated with the transactions contemplated hereby.
(vl) subsequent Prior to the execution consummation of this Agreementthe Exchange Offer or the effectiveness of an applicable shelf registration statement if, in the reasonable judgment of the Initial Purchasers, the Initial Purchasers or any of their affiliates are required to file certain customary notifications deliver an offering memorandum in connection with sales of, or documents market-making activities with respect to, the Securities, (A) the Issuers will periodically amend or supplement the Final Memorandum so that the information contained in the Final Memorandum complies with the FCCrequirements of Rule 144A of the Securities Act, (B) the Issuers will amend or supplement the Final Memorandum when necessary to reflect any material changes in the information provided therein so that the Final Memorandum will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances existing as of the date the Final Memorandum is so delivered, not misleading and (C) the Issuers will provide the Initial Purchasers with copies of each such amended or supplemented Final Memorandum, as the Initial Purchasers may reasonably request. The Issuers hereby expressly acknowledge that the indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each offering memorandum, registration statement, prospectus, amendment or supplement referred to in this Section 5(l).
(m) The Issuers will use commercially reasonable best efforts to satisfy the closing conditions set forth in Section 7 hereof.
Appears in 1 contract
Samples: Purchase Agreement (Sun Medical Technologies Inc /Ca/)
Further Agreements of the Issuers. The Each of the Issuers agree agrees with each of the several Initial Purchasers:
(a) at any time prior to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company Issuers after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that none of the Company and its Issuers or any of their respective subsidiaries shall not be obligated to qualify as foreign business organizations corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdictionjurisdiction or to take any action which would subject it to taxation in any jurisdiction where it is not then so subject;
(hg) to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
(ih) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(ji) except following the effectiveness of the applicable Exchange Offer Registration Statement or the applicable Shelf Registration Statement, as the case may be, not to, and to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the applicable Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;
(kj) for a period of 180 90 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company such Issuer or any of its subsidiaries (other than the applicable Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(nk) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company Issuers of the completion of the resale of the Securities, not to, and to cause its their affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it they or any of its their affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its their affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(ul) to apply the net proceeds from the sale of the applicable Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCC".
Appears in 1 contract
Further Agreements of the Issuers. The Each of the Issuers agree agrees --------------------------------- with each of the several Initial Purchasers:
(a) at any time prior to completion of the resale of the Securities Units by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and upon receipt of such notice, each Initial Purchaser agrees to suspend use of the Offering Memorandum until the Issuers have amended or supplemented the Offering Memorandum to correct such misstatement or omission or to effect compliance with this paragraph (a); to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly as soon as available to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company Issuers after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the any Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);
(f) for so long as the any Securities are outstanding, to furnish to each Initial Purchaser, as soon as practicable after the Initial Purchasers copies end of any each fiscal year, a copy of its annual reportsreport to stockholders for such year and, quarterly reports and current reports as soon as available, a copy of each report filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company or Holdings to the Trustee Trustee, the Warrant Agent or to the holders of the Securities pursuant to the Indenture Indenture, the Warrant Agreement or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate and to continue such qualifications in effect for so long as required for the resale of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided that the Company Holdings and its subsidiaries shall -------- not be obligated to qualify as foreign business organizations corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities Units, the Notes and the Warrants to be designated Private Offerings, Resales and Trading through Automated Linkages Portal Market ("PORTALPortal Market") Market ------------- securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to ---- trading in the PORTAL Portal Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
; --- (i) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;
(k) for a period of 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCC.
Appears in 1 contract
Further Agreements of the Issuers. The Issuers Issuers, jointly and severally, agree with each of the several Initial PurchasersPurchaser:
(a) at any time prior to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Preliminary Offering Memorandum or the Final Offering Memorandum untrue or which requires the making of any additions to or changes in the Preliminary Offering Memorandum or the Final Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Final Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its their reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Final Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Final Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested; provided that, in the event of any amendment or supplement to the Final Offering Memorandum, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date;
(c) prior to making any amendment or supplement to the Preliminary Offering Memorandum or the Final Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company Issuers after a reasonable period to of review, which shall not be in any case longer than five business days after receipt of such copy;
(d) if, at any time prior to completion of the initial resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Final Offering Memorandum in order that the Final Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Final Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders)Act;
(f) for so long as a period of three years following the Securities are outstandingClosing Date, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company Issuers with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company Issuers to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder; provided, however, that any reports or information accepted for filing by the Commission and readily available on the Internet shall be deemed to have been provided to the Initial Purchasers;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request use their reasonable best efforts to qualify the Securities for offering and sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably designate and to continue such qualifications in effect for so long as required for the resale distribution of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided provided, however, that the Company Issuers and its their respective subsidiaries shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are where it is not so then qualified or to file a take any action which would subject it to general consent to service of process or to taxation in any jurisdictionsuch jurisdiction where it is not then so subject;
(h) to use their reasonable best efforts to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its their affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates (as such term is defined in Rule 501(B) of Regulation D) not to, and not to authorize or knowingly permit any person acting on their behalf to, (i) solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities ActAct or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Final Offering Memorandum;
(k) for a period of 180 90 days from the date of the Offering Memorandumhereof, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement (except as required by the Registration Rights Agreement or the Exchange and Registration Rights Agreement dated March 30, 2005 among the Company, the Company's subsidiaries identified therein and the Initial Purchasers (the "Initial Registration Rights Agreement")) for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company Issuers or any of its their respective subsidiaries (other than (i) the SecuritiesSecurities or the Exchange Securities or (ii) the Securities or the Exchange Securities as defined in the Initial Registration Rights Agreement) without the prior written consent of the Initial PurchasersPurchasers (which consent may not be unreasonably withheld);
(l) during until the period from earlier of (i) the Closing Date until date that all the Notes have either been exchanged or registered under a shelf registration statement in accordance with the terms of the Registration Rights Agreement and (ii) two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities Notes that have been reacquired by them, except for Securities Notes purchased by the Company Issuers or any of its their affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company Issuers of the completion of the resale of the Securities, not to, and to cause its their affiliated purchasers (as defined in Regulation M under the Exchange Act) ), not to, either alone or with one or more other persons, bid for or purchase, for any account in which it they or any of its their affiliated purchasers has have a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its their affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(on) in connection with the offering of the Securities, not to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Final Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(uo) to apply the net proceeds from the sale of the Securities as set forth in the Final Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCCproceeds."
Appears in 1 contract
Further Agreements of the Issuers. The Issuers Issuers, jointly and severally, agree with each of the several Initial PurchasersPurchaser:
(a) at any time prior to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers Purchaser promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Preliminary Offering Memorandum or the Final Offering Memorandum untrue or which requires the making of any additions to or changes in the Preliminary Offering Memorandum or the Final Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers Purchaser promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Final Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Final Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial PurchasersPurchaser, without charge, as many copies of the Preliminary Offering Memorandum and the Final Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested; provided that, in the event of any amendment or supplement to the Final Offering Memorandum, the Initial Purchaser shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchaser reasonably in advance of the Closing Date;
(c) prior to making any amendment or supplement to the Preliminary Offering Memorandum or the Final Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers Purchaser and one counsel for the Initial Purchasers Purchaser and not to effect any such amendment or supplement to which the Initial Purchasers Purchaser shall reasonably object by notice to the Company Issuers after a reasonable period to of review, which shall not be in any case longer than five business days after receipt of such copy;
(d) if, at any time prior to completion of the initial resale of the Securities by the Initial PurchasersPurchaser, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers Purchaser or counsel for the Issuers, to amend or supplement the Final Offering Memorandum in order that the Final Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Final Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is Issuers are then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders)Act;
(f) for so long as a period of three years following the Securities are outstandingClosing Date, to furnish to the Initial Purchasers Purchaser copies of any annual reports, quarterly reports and current reports filed by the Company Issuers with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company Issuers to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request use their reasonable best efforts to qualify the Securities for offering and sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers Purchaser may reasonably designate and to continue such qualifications in effect for so long as required for the resale distribution of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided provided, however, that the Company Issuers and its their respective subsidiaries shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are where it is not so then qualified or to file a take any action which would subject it to general consent to service of process or to taxation in any jurisdiction;such jurisdiction where it is not then so subject.
(h) to use their reasonable best efforts to assist the Initial Purchasers Purchaser in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The the Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates (as such term is defined in Rule 501(B) of Regulation D) not to, and not to authorize or knowingly permit any person acting on their behalf to, (i) solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities ActAct or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Final Offering Memorandum;
(k) for a period of 180 90 days from the date of the Offering Memorandumhereof, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement (except as required by the Registration Rights Agreement) for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company Issuers or any of its their respective subsidiaries (other than the Securities or the Exchange Securities) without the prior written consent of the Initial PurchasersPurchaser (which consent may not be unreasonably withheld);
(l) during until the period from earlier of (i) the Closing Date until date that all the Notes have either been exchanged or registered under a shelf registration statement in accordance with the terms of the Registration Rights Agreement and (ii) two years after the Closing Date, without the prior written consent of the Initial PurchasersPurchaser, not to, and not permit any of its their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities Notes that have been reacquired by them, except for Securities Notes purchased by the Company Issuers or any of its their affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers Purchaser shall have notified the Company Issuers of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) ), not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(n) to consummate the Tender Offer and, pursuant thereto, repurchase all of the outstanding 9% senior subordinated notes due 2008 which are tendered for repurchase and not withdrawn thereunder;
(o) in connection with to consummate the offering repurchase contemplated by the Xxxxxx Repurchase and Release Agreement within 15 days of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial PurchasersClosing Date;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Final Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(uq) to apply the net proceeds from the sale of the Securities as set forth in the Final Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCCproceeds."
Appears in 1 contract
Samples: Purchase Agreement (Cooperative Computing Inc /De/)
Further Agreements of the Issuers. The Issuers jointly and severally agree with each of the several Initial PurchasersPurchaser as set forth below in this Section 5:
(a) at any time prior The Issuers will furnish to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Offering Memorandum untrue or which requires the making of any additions to or changes in the Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial PurchasersPurchaser, without charge, as many copies of the Preliminary Offering Final Memorandum and the Offering Memorandum (any supplements and any amendments or supplements thereto) thereto as they may be reasonably requested;request.
(cb) prior Prior to making any amendment or supplement to the Offering Preliminary Memorandum or the Final Memorandum, to the Issuers shall furnish a copy thereof to each of the Initial Purchasers Purchaser and one counsel for to the Initial Purchasers Purchaser and will not to effect any such amendment or supplement to which the Initial Purchasers Purchaser shall reasonably object by notice to the Company after a reasonable period to review;.
(dc) ifIf, at any time prior to completion of the resale distribution of the Securities by the Initial PurchasersPurchaser, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers Purchaser or counsel for the Issuers, to amend or supplement the Offering Final Memorandum in order that the Offering Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Offering Final Memorandum to comply with applicable law, to the Issuers will promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Final Memorandum, as so amended or supplemented, will comply with applicable law;law and furnish to the Initial Purchaser such number of copies of such amendment or supplement as they may reasonably request.
(ed) for so So long as the any Securities are outstanding and are "restricted securitiesRestricted Securities" within the meaning of Rule 144(a)(3) under the Securities Act and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to the Issuers will furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information information, if any, required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders);.
(fe) for so So long as the Securities and Exchange Securities are outstanding, to the Issuers will furnish to the Initial Purchasers Purchaser copies of any annual reports, quarterly reports and current reports filed by the Company with the Securities and Exchange Commission ("SEC") on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the CommissionSEC, and such other documents, reports and information as shall be furnished by the Company Issuers to the Trustee or to the holders of the Securities and Exchange Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder;Indenture.
(gf) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request The Issuers will use their best efforts to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate Purchaser reasonably designates and to continue such qualifications in effect for so long as reasonably required for the resale distribution of the Securities; and to . The Issuers will also arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may Purchaser reasonably request; provided that requests. Notwithstanding the Company and its subsidiaries foregoing, the Issuers shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are not so qualified or to file a general consent to service of process or to subject themselves to taxation in respect of doing business in any jurisdiction;jurisdiction in which it is not otherwise subject.
(hg) The Issuers will use their best efforts to assist the Initial Purchasers in arranging for permit the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market market and for to permit the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");.
(ih) not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except Except following the effectiveness of any Registration Statement (as defined in the Exchange Offer Registration Rights Agreement) and except for such offers as may be made as a result of, or subsequent to, filing such Registration Statement or amendments thereto prior to the Shelf Registration Statementeffectiveness thereof, as the case may be, not toIssuers will not, and to will cause its affiliates their Affiliates not to, and not to authorize or knowingly permit any person acting on their behalf to, solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Offering Memorandum;.
(ki) for a period of 180 days from the date of the Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the The Company or any of its subsidiaries (other than the Securities) without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities that have been reacquired by them, except for Securities purchased by the Company or any of its affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company of the completion of the resale of the Securities, not to, and to cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(o) in connection with the offering of the Securities, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) to do and perform all things required to be done and performed by it under this Agreement that are within its control on or prior to or after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(u) to will apply the net proceeds from the sale of the Securities as set forth in the Offering Memorandum Final Memorandum.
(j) The Issuers will take such steps as shall be necessary to ensure that neither the Company nor any of its subsidiaries shall become (i) an "investment company" within the meaning of the Investment Company Act or (ii) a "holding company" or a "subsidiary company" or an "affiliate" of a holding company within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(k) The Company and its subsidiaries will not, and will cause their Affiliates not to, take any action that would require the registration under the heading "Use Securities Act of Proceeds;" andthe Securities (other than pursuant to the Registration Rights Agreement) including, without limitation, (i) engaging in any directed selling efforts (within the meaning of Regulation S) during any applicable restricted period or (ii) offering any other securities in a manner that would be integrated with the transactions contemplated hereby.
(vl) subsequent Prior to the execution consummation of this Agreementthe Exchange Offer or the effectiveness of an applicable shelf registration statement, if, in the reasonable judgment of the Initial Purchaser, the Initial Purchaser or any of its affiliates are required to file certain customary notifications deliver an offering memorandum in connection with sales of, or documents market-making activities with respect to, the Securities, (A) the Issuers will periodically amend or supplement the Final Memorandum so that the information contained in the Final Memorandum complies with the FCCrequirements of Rule 144A of the Securities Act, (B) the Issuers will amend or supplement the Final Memorandum when necessary to reflect any material changes in the information provided therein so that the Final Memorandum will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing as of the date the Final Memorandum is so delivered, not misleading and (C) the Issuers will provide the Initial Purchaser with copies of each such amended or supplemented Final Memorandum, as the Initial Purchaser may reasonably request. The Issuers hereby expressly acknowledge that the indemnification and contribution provisions of Section 8 hereof are specifically applicable and relate to each offering memorandum, registration statement, prospectus, amendment or supplement referred to in this Section 5(l).
(m) The Issuers will not terminate the consent solicitation made pursuant to the Consent Solicitation Statement prior to 5:00 P.M. (New York City time) on March 27, 1998 and from and after such date shall consummate such consent solicitation as promptly as possible in accordance with the terms of the Consent Solicitation Statement as in effect on the date hereof.
(n) The Issuers will do all things reasonably necessary to satisfy the closing conditions set forth in Section 7 hereof.
Appears in 1 contract
Samples: Purchase Agreement (Chattem Inc)
Further Agreements of the Issuers. The Issuers Issuers, jointly and severally, agree with each of the several Initial PurchasersPurchaser:
(a) at any time prior to completion of the resale of the Securities by the Initial Purchasers, to advise the Initial Purchasers promptly and, if requested, confirm such advice in writing, of the happening of any event which makes any statement of a material fact made in the Preliminary Offering Memorandum or the Final Offering Memorandum untrue or which requires the making of any additions to or changes in the Preliminary Offering Memorandum or the Final Offering Memorandum (as amended or supplemented from time to time) in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; to advise the Initial Purchasers promptly of any order preventing or suspending the use of the Preliminary Offering Memorandum or the Final Offering Memorandum, of any suspension of the qualification of the Securities for offering or sale in any jurisdiction and of the initiation or threatening of any proceeding for any such purpose; and to use its their reasonable best efforts to prevent the issuance of any such order preventing or suspending the use of the Preliminary Offering Memorandum or the Final Offering Memorandum or suspending any such qualification and, if any such suspension is issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and one counsel for the Initial Purchasers, without charge, as many copies of the Preliminary Offering Memorandum and the Final Offering Memorandum (and any amendments or supplements thereto) as may be reasonably requested; provided that, in the event of any amendment or supplement to the Final Offering Memorandum, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date;
(c) prior to making any amendment or supplement to the Preliminary Offering Memorandum or the Final Offering Memorandum, to furnish a copy thereof to each of the Initial Purchasers and one counsel for the Initial Purchasers and not to effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company Issuers after a reasonable period to of review, which shall not be in any case longer than five business days after receipt of such copy;
(d) if, at any time prior to completion of the initial resale of the Securities by the Initial Purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Initial Purchasers or counsel for the Issuers, to amend or supplement the Final Offering Memorandum in order that the Final Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Final Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Final Offering Memorandum, as so amended or supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to holders of the Securities and prospective purchasers of the Securities designated by such holders, upon request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement being for the benefit of the holders from time to time of the Securities and prospective purchasers of the Securities designated by such holders)Act;
(f) for so long as a period of three years following the Securities are outstandingClosing Date, to furnish to the Initial Purchasers copies of any annual reports, quarterly reports and current reports filed by the Company Issuers with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company Issuers to the Trustee or to the holders of the Securities pursuant to the Indenture or the Exchange Act or any rule or regulation of the Commission thereunder; provided, however, that any reports or information accepted for filing by the Commission and readily available on the Internet shall be deemed to have been provided to the Initial Purchasers;
(g) at any time prior to completion of the resale of the Securities, to promptly take from time to time such actions as the Initial Purchasers may reasonably request use their reasonable best efforts to qualify the Securities for offering and sale under the state securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may reasonably designate and to continue such qualifications in effect for so long as required for the resale distribution of the Securities; and to arrange for the determination of the eligibility for investment of the Securities under the laws of such jurisdictions as the Initial Purchasers may reasonably request; provided provided, however, that the Company Issuers and its their respective subsidiaries shall not be obligated to qualify as a foreign business organizations corporation in any jurisdiction in which they are where it is not so then qualified or to file a take any action which would subject it to general consent to service of process or to taxation in any jurisdictionsuch jurisdiction where it is not then so subject;
(h) to use their reasonable best efforts to assist the Initial Purchasers in arranging for the Securities to be designated Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") Market securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the Securities to be eligible and to maintain such eligibility for clearance and settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its their affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as such term is defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement, as the case may be, not to, and to cause its affiliates (as such term is defined in Rule 501(B) of Regulation D) not to, and not to authorize or knowingly permit any person acting on their behalf to, (i) solicit any offer to buy or offer to sell the Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities ActAct or (ii) engage in any directed selling efforts within the meaning of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S; and not to offer, sell, contract to sell or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offering and sale of the Securities as contemplated by this Agreement and the Final Offering Memorandum;
(k) for a period of 180 90 days from the date of the Offering Memorandumhereof, not to offer for sale, sell, contract to sell or otherwise dispose of, directly or indirectly, or file a registration statement (except as required by the Registration Rights Agreement) for, or announce any offer, sale, contract for sale of or other disposition of any debt securities issued or guaranteed by the Company Issuers or any of its their respective subsidiaries (other than the Securities or the Exchange Securities) without the prior written consent of the Initial PurchasersJ.P. Morgan Securities Inc. (which consent may not be unreasonxxxx xxxxxxld);
(l) during until the period from earlier of (i) the Closing Date until date that all the Notes have either been exchanged or registered under a shelf registration statement in accordance with the terms of the Registration Rights Agreement and (ii) two years after the Closing Date, without the prior written consent of the Initial Purchasers, not to, and not permit any of its their affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Securities Notes that have been reacquired by them, except for Securities Notes purchased by the Company Issuers or any of its their affiliates and resold in a transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or become, or be or become owned by, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act of 1940, as amended, and to not be or become, or be or become owned by, a closed-end investment company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on behalf of the Initial Purchasers shall have notified the Company Issuers of the completion of the resale of the Securities, not to, and to cause its their affiliated purchasers (as defined in Regulation M under the Exchange Act) ), not to, either alone or with one or more other persons, bid for or purchase, for any account in which it they or any of its their affiliated purchasers has have a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its their affiliated purchasers not to, make bids or purchase for the purpose of creating actual, or apparent, active trading in or of raising the price of the Securities;
(on) in connection with the offering if less than all of the Securitiescapital stock of Speedware is acquired in the Tender Offer, to make its officers, employees, independent accountants and legal counsel reasonably available upon request by the Initial Purchasers;
(p) use their best efforts to do and perform all things required acquire or cause to be done and performed by it under this Agreement that are within its control on or prior to or acquired any untendered shares as promptly as practicable after the Closing Date, as applicable, and to use its best efforts to satisfy all conditions precedent on its part to the delivery of the Securities;
(qo) not to not take any action prior to the execution and delivery of the Indenture which, if taken after such execution and delivery, would have violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would require the Final Offering Memorandum to be amended or supplemented pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press conference with respect to the Issuers, their condition, financial or otherwise, or earnings, business affairs or business prospects (except for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Issuers and of which the Initial Purchasers are notified), without the prior written consent of the Initial Purchasers, unless in the judgment of the Issuers and their counsel, and after notification to the Initial Purchasers, such press release or communication is required by law;
(t) to not voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of the Securities; and
(up) to apply the net proceeds from the sale of the Securities as set forth in the Final Offering Memorandum under the heading "Use of Proceeds;" and
(v) subsequent to the execution of this Agreement, to file certain customary notifications or documents with the FCCproceeds."
Appears in 1 contract
