Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder Parties agree: (i) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than Commission’s close of business 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 or to the Prospectus prior to the last Delivery Date except as permitted herein; to advise the Representatives, 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 Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by it 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 the Offered Units; to advise the Representatives, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units 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 any Issuer Free Writing 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 Prospectus or any Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; (ii) To furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed 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; (iii) To promptly deliver or make available to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; (B) each Issuer Free Writing Prospectus; and (C) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance; (iv) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties or the Representatives, be required by the Securities Act or requested by the Commission; (v) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, or any Prospectus pursuant to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters; (vi) As soon as practicable after the Effective Time to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (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 Trust, Rule 158); (vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject; (viii) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives; (ix) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and (x) For a period of 90 days from the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (a) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Units or securities convertible into or exchangeable for Units (other than the Offered Units), or sell or grant options, rights or warrants with respect to any Units or securities convertible into or exchangeable for Units, (b) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Units, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Units or other securities, in cash or otherwise, (c) file or cause to be filed a registration statement with respect to any Units or securities convertible, exercisable or exchangeable into Units or any other securities of the Trust or (d) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives, on behalf of the Underwriters; (b) Each Underwriter severally agrees that such Underwriter has not used or referred to, and shall not use or refer to without the prior consent of the Trust and Burlington, any “free writing prospectus” (as defined in Rule 405, but excluding any road show that is a free writing prospectus under Rule 433) in connection with the offering and sale of the Offered Units.
Appears in 2 contracts
Samples: Underwriting Agreement (Burlington Resources Inc), Underwriting Agreement (Permian Basin Royalty Trust)
Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder the PCEC Parties agreeseverally agrees:
(ia) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by it 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 the Offered Units; to advise the Representatives, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(iib) To furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed 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;
(iiic) To deliver promptly deliver or make available to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) 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), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; Prospectus and (BC) each Issuer Free Writing Prospectus; and (C) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(ivd) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties Partnership or the Representatives, be required by the Securities Act or requested by the Commission;
(ve) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, or any Prospectus pursuant to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters;
(vi) As soon as practicable after the Effective Time to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (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 Trust, Rule 158);
(vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viiif) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives;
(ixg) To retain in accordance comply with all applicable requirements of Rule 433 under the Rules and Regulations all Securities Act with respect to any Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and;
(xh) As soon as practicable after the Effective Date (it being understood that the Trust shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Trust’s fiscal year, 455 days after the end of the Trust’s current fiscal quarter), to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Trust, Rule 158);
(i) To cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably designate and to file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall the Partnership or the Trust be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any jurisdiction is suspended, the Partnership and the Trust shall so advise you promptly in writing;
(j) For a period of 90 days from commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (aA) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Trust Units (including, without limitation, Trust Units that may be deemed to be beneficially owned by the Partnership in accordance with the rules and regulations of the Commission and Trust Units that may be issued upon exercise of any options or warrants) or securities convertible into or exchangeable for Units (other than the Offered Trust Units), or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into into, exercisable or exchangeable for UnitsTrust Units (other than the offer and sale of the Firm Units and the Option Units and a pledge of the Trust Units not sold in this offering under the Third Amended and Restated Credit Agreement, (bB) enter into any swap or other derivatives derivative transaction that transfers to another, in whole or in part, any of the economic benefits or risks consequences of ownership of such Trust Units, whether any such transaction described in clause (aA) or (bB) above is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (cC) file or cause to be filed filed, or make any demand or exercise any right with respect thereto, a registration statement statement, including any amendments thereto, with respect to the registration of any Trust Units or securities convertible, exercisable or exchangeable into Trust Units or any other securities of the Trust or (dD) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the RepresentativesBarclays Capital Inc., on behalf of the Underwriters; notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Period, the Trust issues an earnings release or material news or a material event relating to the Trust occurs or (y) prior to the expiration of the Lock-Up Period, the Trust announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. on behalf of the Underwriters, agrees not to require such extension in writing;
(bk) Each Underwriter severally agrees that In the case of the Trust, to file with the Commission such Underwriter has not used information on Form 10-Q or referred toForm 10-K as may be required by Rule 463 under the Securities Act;
(l) If the Trust and the Partnership elect to rely upon Rule 462(b) under the Securities Act, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Partnership shall not use at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement;
(m) None of the Trust, the PCEC Parties nor any of their affiliates will take, directly or refer indirectly, any action designed to without or that has constituted or that reasonably would be expected to cause or result in the prior consent stabilization or manipulation of the price of any security of the Trust and Burlington, any “free writing prospectus” (as defined in Rule 405, but excluding any road show that is a free writing prospectus under Rule 433) in connection with the offering and sale of the Offered Units;
(n) To promptly notify the Representatives if the Trust ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Units within the meaning of the Securities Act and (b) completion of the 180-day restricted period referred to in Section 6(j) hereof; and
(o) To do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Units.
Appears in 1 contract
Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder Parties agreethe Company severally agrees:
(ia) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly timely all reports and any definitive proxy or information statements required to be filed by it the Trust 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 the Offered Units; to advise the Representatives, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(iib) To Unless otherwise available on the Commission’s electronic data gathering, analysis and retrieval system (“XXXXX”), to furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed 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;
(iiic) To deliver promptly deliver or make available to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) unless otherwise available on XXXXX, 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), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; , (BC) each Issuer Free Writing Prospectus; Prospectus and (CD) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto)Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(ivd) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties Company or the Representatives, be required by the Securities Act or requested by the Commission;
(ve) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant amendment to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters;
(vi) As soon , so long as practicable after any Underwriter is required in the Effective Time to make generally available to reasonable opinion of the Trust’s security holders and Representatives, based on the advice of Xxxxx Xxxxx L.L.P., to deliver a prospectus (or, in lieu thereof, the notice referred to the Representatives an earnings statement of the Trust (which need not be audited) complying with Section 11(ain Rule 173(a) of the Securities Act and the Rules and Regulations (including, at the option of the Trust, Rule 158Act);
(vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viiif) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives;
(ixg) To retain in accordance comply with all applicable requirements of Rule 433 under the Rules and Regulations all Securities Act with respect to any Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and;
(xh) As soon as practicable after the Effective Date (it being understood that the Trust shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Trust’s current fiscal quarter), to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Trust, Rule 158);
(i) To cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably designate and to file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall the Company or the Trust be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any jurisdiction is suspended, the Company and the Trust shall so advise you promptly in writing;
(j) For a period of 90 days from commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (aA) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Trust Units (including, without limitation, Trust Units that may be deemed to be beneficially owned by the Company in accordance with the rules and regulations of the Commission and Trust Units that may be issued upon exercise of any options or warrants) or securities convertible into or exchangeable for Units (other than the Offered Trust Units), or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into into, exercisable or exchangeable for Trust Units (other than the offer and sale of the Firm Units and the Option Units), (bB) enter into any swap or other derivatives derivative transaction that transfers to another, in whole or in part, any of the economic benefits or risks consequences of ownership of such Trust Units, whether any such transaction described in clause (aA) or (bB) above is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (cC) make any demand for or exercise any right or file or cause to be filed a registration statement statement, including any amendments thereto, with respect to the registration of any Trust Units or securities convertible, exercisable or exchangeable into Trust Units or any other securities of the Trust or (dD) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the RepresentativesBarclays Capital Inc., on behalf of the Underwriters, and to furnish or cause to be furnished to the Representatives, prior to the Initial Delivery Date, each of the Lock-Up Agreements; notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Period, the Trust issues an earnings release or material news or a material event relating to the Trust occurs or (y) prior to the expiration of the Lock-Up Period, the Trust announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. on behalf of the Underwriters, agrees not to require such extension in writing;
(bk) Each Underwriter severally agrees In the case of the Company, to apply the net proceeds from the sale of the Units being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds”;
(l) None of the Trust, the Company nor any of their affiliates will take, directly or indirectly, any action designed to or that such Underwriter has not used constituted or referred to, and shall not use that reasonably would be expected to cause or refer to without result in the prior consent stabilization or manipulation of the price of any security of the Trust and Burlington, any “free writing prospectus” (as defined in Rule 405, but excluding any road show that is a free writing prospectus under Rule 433) in connection with the offering and sale of the Offered Units; and
(m) To do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Units.
Appears in 1 contract
Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder the PCEC Parties agreeseverally agrees:
(ia) To prepare the Prospectus in a form approved by the Representatives Underwriter and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted provided herein; to advise the RepresentativesUnderwriter, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives Underwriter with copies thereof; to file promptly timely all reports and any definitive proxy or information statements required to be filed by it the Trust 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 the Offered Units; to advise the RepresentativesUnderwriter, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(iib) To Unless otherwise available on the Commission’s electronic data gathering, analysis and retrieval system (“XXXXX”), to furnish promptly to each of the Representatives Underwriter and to counsel for the Underwriters Underwriter a conformed 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;
(iiic) To deliver promptly deliver or make available to the Representatives Underwriter such number of the following documents as the Representatives Underwriter shall reasonably request: (A) unless otherwise available on XXXXX, 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), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; , (BC) each Issuer Free Writing Prospectus; Prospectus and (CD) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto)Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives Underwriter and, upon their its request, to file such document and to prepare and furnish without charge to each the Underwriter and to any dealer in securities as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(ivd) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties Partnership or the RepresentativesUnderwriter, be required by the Securities Act or requested by the Commission;
(ve) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant amendment to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives Underwriter and counsel for the Underwriters;
(vi) As soon Underwriter, so long as practicable after the Effective Time to make generally available to Underwriter is required in the Trust’s security holders and reasonable opinion of the Underwriter, based on the advice of Xxxxx Xxxxx L.L.P., to deliver a prospectus (or, in lieu thereof, the notice referred to the Representatives an earnings statement of the Trust (which need not be auditedin Rule 173(a) complying with Section 11(a) of under the Securities Act and the Rules and Regulations (including, at the option of the Trust, Rule 158Act);
(vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viiif) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the RepresentativesUnderwriter;
(ixg) To retain in accordance comply with all applicable requirements of Rule 433 under the Rules and Regulations all Securities Act with respect to any Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives Underwriter and, upon their its request, to file such document and to prepare and furnish without charge to each the Underwriter as many copies as the Representatives Underwriter may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and;
(xh) As soon as practicable after the Effective Date (it being understood that the Trust shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Trust’s fiscal year, 455 days after the end of the Trust’s current fiscal quarter), to make generally available to the Trust’s security holders and to deliver to the Underwriter an earnings statement of the Trust (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Trust, Rule 158);
(i) To cooperate with the Underwriter and counsel for the Underwriter in connection with the registration or qualification of the Units for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as the Underwriter may reasonably designate and to file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall the Partnership or the Trust be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any jurisdiction is suspended, the Partnership and the Trust shall so advise you promptly in writing;
(j) For a period of 90 days from commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (aA) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Trust Units (including, without limitation, Trust Units that may be deemed to be beneficially owned by the Partnership in accordance with the rules and regulations of the Commission and Trust Units that may be issued upon exercise of any options or warrants) or securities convertible into or exchangeable for Units (other than the Offered Trust Units), or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into into, exercisable or exchangeable for Trust Units (other than the offer and sale of the Units), (bB) enter into any swap or other derivatives derivative transaction that transfers to another, in whole or in part, any of the economic benefits or risks consequences of ownership of such Trust Units, whether any such transaction described in clause (aA) or (bB) above is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (cC) file or cause to be filed filed, or make any demand or exercise any right with respect thereto, a registration statement statement, including any amendments thereto, with respect to the registration of any Trust Units or securities convertible, exercisable or exchangeable into Trust Units or any other securities of the Trust or (dD) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives, on behalf of the UnderwritersUnderwriter;
(bk) Each Underwriter severally agrees that such Underwriter has not used or referred toIf the Trust elects to rely upon Rule 462(b) under the Securities Act, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Trust shall not use at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement;
(l) None of the Trust, the PCEC Parties nor any of their affiliates will take, directly or refer indirectly, any action designed to without or that has constituted or that reasonably would be expected to cause or result in the prior consent stabilization or manipulation of the price of any security of the Trust and Burlington, any “free writing prospectus” (as defined in Rule 405, but excluding any road show that is a free writing prospectus under Rule 433) in connection with the offering and sale of the Offered Units;
(m) To promptly notify the Underwriter if the Trust ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Units within the meaning of the Securities Act and (b) completion of the 60-day restricted period referred to in Section 8(j) hereof; and
(n) To do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Delivery Date, and to satisfy all conditions precedent to the Underwriter’s obligations hereunder to purchase the Units.
Appears in 1 contract
Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder Parties agree:
(i) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than Commission’s close of business 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 or to the Prospectus prior to the last Delivery Date except as permitted herein; to advise the Representatives, 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 Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by it 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 the Offered Units; to advise the Representatives, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units 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 any Issuer Free Writing 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 Prospectus or any Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(ii) To furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed 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;
(iii) To promptly deliver or make available to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; (B) each Issuer Free Writing Prospectus; and (C) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(iv) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties or the Representatives, be required by the Securities Act or requested by the Commission;
(v) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, or any Prospectus pursuant to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters;
(vi) As soon as practicable after the Effective Time to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (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 Trust, Rule 158);
(vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viii) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives;
(ix) To retain in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and
(x) For a period of 90 30 days from the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 9030-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (a) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Units or securities convertible into or exchangeable for Units (other than the Offered Units), or sell or grant options, rights or warrants with respect to any Units or securities convertible into or exchangeable for Units, (b) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Units, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Units or other securities, in cash or otherwise, (c) file or cause to be filed a registration statement with respect to any Units or securities convertible, exercisable or exchangeable into Units or any other securities of the Trust or (d) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives, on behalf of the Underwriters;
(b) Each Underwriter severally agrees that such Underwriter has not used or referred to, and shall not use or refer to without the prior consent of the Trust and BurlingtonConocoPhillips, any “free writing prospectus” (as defined in Rule 405, but excluding any road show that is a free writing prospectus under Rule 433) in connection with the offering and sale of the Offered Units.
Appears in 1 contract
Samples: Underwriting Agreement (Permian Basin Royalty Trust)
Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder the PCEC Parties agreeseverally agrees:
(ia) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by it 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 the Offered Units; to advise the Representatives, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(iib) To furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed 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;
(iiic) To deliver promptly deliver or make available to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) 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), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; Prospectus and (BC) each Issuer Free Writing Prospectus; and (C) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(ivd) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties Partnership or the Representatives, be required by the Securities Act or requested by the Commission;
(ve) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, or any Prospectus pursuant to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters;
(vi) As soon as practicable after the Effective Time to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (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 Trust, Rule 158);
(vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viiif) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives;
(ixg) To retain in accordance comply with all applicable requirements of Rule 433 under the Rules and Regulations all Securities Act with respect to any Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and;
(xh) As soon as practicable after the Effective Date (it being understood that the Trust shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Trust’s fiscal year, 455 days after the end of the Trust’s current fiscal quarter), to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Trust, Rule 158);
(i) To cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably designate and to file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall the Partnership or the Trust be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any jurisdiction is suspended, the Partnership and the Trust shall so advise you promptly in writing;
(j) For a period of 90 days from commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (aA) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Trust Units (including, without limitation, Trust Units that may be deemed to be beneficially owned by the Partnership in accordance with the rules and regulations of the Commission and Trust Units that may be issued upon exercise of any options or warrants) or securities convertible into or exchangeable for Units (other than the Offered Trust Units), or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into into, exercisable or exchangeable for UnitsTrust Units (other than the offer and sale of the Firm Units and the Option Units and a pledge of the Trust Units not sold in this offering under the Third Amended and Restated Credit Agreement, dated [ — ], 2012, by and among the Partnership, each of the financial institutions from time to time party thereto and Xxxxx Fargo Bank, N.A., as administrative agent), (bB) enter into any swap or other derivatives derivative transaction that transfers to another, in whole or in part, any of the economic benefits or risks consequences of ownership of such Trust Units, whether any such transaction described in clause (aA) or (bB) above is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (cC) file or cause to be filed filed, or make any demand or exercise any right with respect thereto, a registration statement statement, including any amendments thereto, with respect to the registration of any Trust Units or securities convertible, exercisable or exchangeable into Trust Units or any other securities of the Trust or (dD) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the RepresentativesBarclays Capital Inc., on behalf of the Underwriters; notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Period, the Trust issues an earnings release or material news or a material event relating to the Trust occurs or (y) prior to the expiration of the Lock-Up Period, the Trust announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. on behalf of the Underwriters, agrees not to require such extension in writing;
(bk) Each Underwriter severally agrees that In the case of the PCEC Parties, to apply the net proceeds from the sale of the Units being sold by the Partnership substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds”;
(l) In the case of the Trust, to file with the Commission such Underwriter has not used information on Form 10-Q or referred toForm 10-K as may be required by Rule 463 under the Securities Act;
(m) If the Trust and the Partnership elect to rely upon Rule 462(b) under the Securities Act, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Partnership shall not use at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement;
(n) None of the Trust, the PCEC Parties nor any of their affiliates will take, directly or refer indirectly, any action designed to without or that has constituted or that reasonably would be expected to cause or result in the prior consent stabilization or manipulation of the price of any security of the Trust and Burlington, any “free writing prospectus” (as defined in Rule 405, but excluding any road show that is a free writing prospectus under Rule 433) in connection with the offering and sale of the Offered Units; and
(o) To do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Units.
Appears in 1 contract
Samples: Underwriting Agreement (Pacific Coast Energy Co LP)
Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder Parties agreethe Company severally agrees:
(ia) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by it 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 the Offered Units; to advise the Representatives, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(iib) To furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed 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;
(iiic) To deliver promptly deliver or make available to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) 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), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; Prospectus and (BC) each Issuer Free Writing Prospectus; and (C) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(ivd) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties Company or the Representatives, be required by the Securities Act or requested by the Commission;
(ve) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, or any Prospectus pursuant to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters;
(vi) As soon as practicable after the Effective Time to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (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 Trust, Rule 158);
(vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viiif) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives;
(ixg) To retain in accordance comply with all applicable requirements of Rule 433 under the Rules and Regulations all Securities Act with respect to any Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and;
(xh) As soon as practicable after the Effective Date (it being understood that the Trust shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Trust’s current fiscal quarter), to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Trust, Rule 158);
(i) To cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably designate and to file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall the Company or the Trust be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any jurisdiction is suspended, the Company and the Trust shall so advise you promptly in writing;
(j) For a period of 90 days from commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (aA) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Trust Units (including, without limitation, Trust Units that may be deemed to be beneficially owned by the Company in accordance with the rules and regulations of the Commission and Trust Units that may be issued upon exercise of any options or warrants) or securities convertible into or exchangeable for Units (other than the Offered Trust Units), or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into into, exercisable or exchangeable for UnitsTrust Units (other than the offer and sale of the Firm Units and the Option Units and other than a pledge of the Company’s Trust Units under the Credit Agreement dated December 1, 2010, among the Company, each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent and L/C Issuer, as amended, provided that the Company will agree not to acquire any oil or natural gas properties for consideration exceeding $10 million, either individually or in the aggregate, for a period of 90 days after the date of the Prospectus), (bB) enter into any swap or other derivatives derivative transaction that transfers to another, in whole or in part, any of the economic benefits or risks consequences of ownership of such Trust Units, whether any such transaction described in clause (aA) or (bB) above is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (cC) make any demand for or exercise any right or file or cause to be filed a registration statement statement, including any amendments thereto, with respect to the registration of any Trust Units or securities convertible, exercisable or exchangeable into Trust Units or any other securities of the Trust or (dD) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the RepresentativesBarclays Capital Inc., on behalf of the Underwriters, and to furnish or cause to be furnished to the Representatives, prior to the Initial Delivery Date, each of the Lock-Up Agreements; notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Period, the Trust issues an earnings release or material news or a material event relating to the Trust occurs or (y) prior to the expiration of the Lock-Up Period, the Trust announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. on behalf of the Underwriters, agrees not to require such extension in writing;
(bk) Each Underwriter severally agrees that In the case of the Company, to apply the net proceeds from the sale of the Units being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds”;
(l) In the case of the Trust, to file with the Commission such Underwriter has not used information on Form 10-Q or referred to, and shall not use or refer to without Form 10-K as may be required by Rule 463 under the prior consent of Securities Act;
(m) If the Trust and Burlingtonthe Company elect to rely upon Rule 462(b) under the Securities Act, any “free writing prospectus” (as defined in to file a Rule 405, but excluding any road show that is a free writing prospectus under Rule 433462(b) in connection Registration Statement with the offering Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and sale the Company shall at the time of filing pay the Offered Units.Commission the filing fee for the Rule 462(b)
Appears in 1 contract
Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder the PCEC Parties agreeseverally agrees:
(ia) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly timely all reports and any definitive proxy or information statements required to be filed by it the Trust 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 the Offered Units; to advise the Representatives, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(iib) To Unless otherwise available on the Commission’s electronic data gathering, analysis and retrieval system (“XXXXX”), to furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed 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;
(iiic) To deliver promptly deliver or make available to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) unless otherwise available on XXXXX, 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), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; , (BC) each Issuer Free Writing Prospectus; Prospectus and (CD) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto)Prospectus; and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(ivd) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties Partnership or the Representatives, be required by the Securities Act or requested by the Commission;
(ve) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, any document incorporated by reference in the Prospectus or any Prospectus pursuant amendment to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters;
(vi) As soon , so long as practicable after any Underwriter is required in the Effective Time to make generally available to reasonable opinion of the Trust’s security holders and Representatives, based on the advice of Xxxxx Xxxxx L.L.P., to deliver a prospectus (or, in lieu thereof, the notice referred to the Representatives an earnings statement of the Trust (which need not be auditedin Rule 173(a) complying with Section 11(a) of under the Securities Act and the Rules and Regulations (including, at the option of the Trust, Rule 158Act);
(vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viiif) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives;
(ixg) To retain in accordance comply with all applicable requirements of Rule 433 under the Rules and Regulations all Securities Act with respect to any Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and;
(xh) As soon as practicable after the Effective Date (it being understood that the Trust shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Trust’s fiscal year, 455 days after the end of the Trust’s current fiscal quarter), to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Trust, Rule 158);
(i) To cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably designate and to file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall the Partnership or the Trust be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any jurisdiction is suspended, the Partnership and the Trust shall so advise you promptly in writing;
(j) For a period of 90 days from commencing on the date hereof and ending on the 60th day after the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (aA) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Trust Units (including, without limitation, Trust Units that may be deemed to be beneficially owned by the Partnership in accordance with the rules and regulations of the Commission and Trust Units that may be issued upon exercise of any options or warrants) or securities convertible into or exchangeable for Units (other than the Offered Trust Units), or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into into, exercisable or exchangeable for Trust Units (other than the offer and sale of the Firm Units and the Option Units), (bB) enter into any swap or other derivatives derivative transaction that transfers to another, in whole or in part, any of the economic benefits or risks consequences of ownership of such Trust Units, whether any such transaction described in clause (aA) or (bB) above is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (cC) file or cause to be filed filed, or make any demand or exercise any right with respect thereto, a registration statement statement, including any amendments thereto, with respect to the registration of any Trust Units or securities convertible, exercisable or exchangeable into Trust Units or any other securities of the Trust or (dD) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the RepresentativesXxxxxx Xxxxxxx & Co. LLC, on behalf of the Underwriters;
(bk) Each Underwriter severally agrees that such Underwriter has not used or referred toIf the Trust elects to rely upon Rule 462(b) under the Securities Act, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Trust shall not use at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement;
(l) None of the Trust, the PCEC Parties nor any of their affiliates will take, directly or refer indirectly, any action designed to without or that has constituted or that reasonably would be expected to cause or result in the prior consent stabilization or manipulation of the price of any security of the Trust and Burlington, any “free writing prospectus” (as defined in Rule 405, but excluding any road show that is a free writing prospectus under Rule 433) in connection with the offering and sale of the Offered Units;
(m) To promptly notify the Representatives if the Trust ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Units within the meaning of the Securities Act and (b) completion of the 60-day restricted period referred to in Section 8(j) hereof; and
(n) To do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Units.
Appears in 1 contract
Further Agreements of the Parties. (a) Each of the Trust and Selling Unitholder Parties agreethe Company severally agrees:
(ia) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or to the Prospectus prior to the last Delivery Date except as permitted provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by it 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 the Offered Units; to advise the Representatives, 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 any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Offered Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing 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 Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(iib) To furnish promptly to each of the Representatives and to counsel for the Underwriters a conformed 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;
(iiic) To deliver promptly deliver or make available to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) 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), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; Prospectus and (BC) each Issuer Free Writing Prospectus; and (C) any document incorporated by reference in any Preliminary Prospectus or the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Time date hereof in connection with the offering or sale of the Offered Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their its request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(ivd) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Trust, the Selling Unitholder Parties Company or the Representatives, be required by the Securities Act or requested by the Commission;
(ve) Until the delivery of a prospectus is no longer required in connection with the offering or sale of the Offered Units, (i) prior Prior to filing with the Commission any amendment or supplement to the Registration Statement or supplement to the Prospectus, or any Prospectus pursuant to Rule 424(b) of the Rules and Regulations, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing, and (ii) prior to filing with the Commission any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters;
(vi) As soon as practicable after the Effective Time to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (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 Trust, Rule 158);
(vii) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Offered Units for offering and sale under the securities laws of such jurisdictions as the Representatives may request 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 Offered Units; provided that in connection therewith neither the Trust nor the Selling Unitholder Parties shall be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject;
(viiif) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives;
(ixg) To retain in accordance comply with all applicable requirements of Rule 433 under the Rules and Regulations all Securities Act with respect to any Issuer Free Writing Prospectuses not required to be filed pursuant to the Rules and Regulations; and if Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when considered together with the information in the most recent Preliminary Prospectus, or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance; and;
(xh) As soon as practicable after the Effective Date (it being understood that the Trust shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Trust’s current fiscal quarter), to make generally available to the Trust’s security holders and to deliver to the Representatives an earnings statement of the Trust (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Trust, Rule 158);
(i) To cooperate with the Representatives and counsel for the Underwriters in connection with the registration or qualification of the Units for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably designate and to file such consents to service of process or other documents as may be reasonably necessary in order to effect and maintain such registration or qualification for so long as required to complete the distribution of the Units; provided that in no event shall the Company or the Trust be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general service of process in suits, other than those arising out of the offering or sale of the Units, as contemplated by this Agreement and the Prospectus, in any jurisdiction where it is not now so subject. In the event that the qualification of the Units in any jurisdiction is suspended, the Company and the Trust shall so advise you promptly in writing;
(j) For a period of 90 days from commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), except (a) for Units to be sold to the Underwriters pursuant to the Underwriting Agreement and (b) for intercompany transfers of Units among the Selling Unitholder Parties and their wholly owned direct or indirect subsidiaries, (provided that it shall be a condition to any such transfer that (1) the transferee/donee agrees to be bound by the terms of this Section 6(a)(x) to the same extent as if the transferee/donee were a party hereto, (2) no filing by any party (donor, donee, transferor or transferee) under the Exchange Act, shall be required or shall be voluntarily made in connection with such transfer or distribution (other than a filing on Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A) made after the expiration of the 90-day period referred to above), (3) no party (donor, donee, transferor or transferee) shall be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Exchange Act) to make, nor shall any such party agree to voluntarily make, any public announcement of the transfer or disposition, and (4) the Selling Unitholder Parties notify the Representatives at least two business days prior to the proposed transfer or disposition), not to, directly or indirectly, (aA) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Trust Units (including, without limitation, Trust Units that may be deemed to be beneficially owned by the Company in accordance with the rules and regulations of the Commission and Trust Units that may be issued upon exercise of any options or warrants) or securities convertible into or exchangeable for Units (other than the Offered Trust Units), or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into into, exercisable or exchangeable for Trust Units (other than the offer and sale of the Firm Units and the Option Units), (bB) enter into any swap or other derivatives derivative transaction that transfers to another, in whole or in part, any of the economic benefits or risks consequences of ownership of such Trust Units, whether any such transaction described in clause (aA) or (bB) above is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (cC) make any demand for or exercise any right or file or cause to be filed a registration statement statement, including any amendments thereto, with respect to the registration of any Trust Units or securities convertible, exercisable or exchangeable into Trust Units or any other securities of the Trust or (dD) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the RepresentativesBarclays Capital Inc., on behalf of the Underwriters, and to furnish or cause to be furnished to the Representatives, prior to the Initial Delivery Date, each of the Lock-Up Agreements; notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Period, the Trust issues an earnings release or material news or a material event relating to the Trust occurs or (y) prior to the expiration of the Lock-Up Period, the Trust announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless Barclays Capital Inc. on behalf of the Underwriters, agrees not to require such extension in writing;
(bk) Each Underwriter severally agrees that In the case of the Company, to apply the net proceeds from the sale of the Units being sold by the Company substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds”;
(l) In the case of the Trust, to file with the Commission such Underwriter has not used information on Form 10-Q or referred toForm 10-K as may be required by Rule 463 under the Securities Act;
(m) If the Trust and the Company elect to rely upon Rule 462(b) under the Securities Act, to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall not use at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement;
(n) In connection with the Directed Unit Program, the Company shall ensure that any of the officers or refer managers of the Company that are Directed Trust Units Participants will be restricted from sale, transfer, assignment, pledge or hypothecation to without the prior consent same extent as sales and dispositions of Trust Units by the Company are restricted pursuant to Section 6(j). At the request of Barclays Capital Inc., the Trust will direct the transfer agent to place stop transfer restrictions upon such securities held by such individuals for such period of time as is consistent with Section 6(j);
(o) None of the Trust, the Company nor any of their affiliates will take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Trust and Burlington, any “free writing prospectus” (as defined in Rule 405, but excluding any road show that is a free writing prospectus under Rule 433) in connection with the offering and sale of the Offered Units; and
(p) To do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Units.
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