Of the Company. The Company covenants and agrees with the several Underwriters as follows: (a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof. (b) The Company will furnish to you, without charge, a photocopy of the signed original of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request. (c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission. (d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed. (e) The Company will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed. (f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 Preliminary Prospectus or the 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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. (g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company. (h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Units, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by all dealers to whom Units may be sold, both in connection with the offering and sale of the Units and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof. (i) If this Agreement shall terminate or shall be terminated after execution pursuant to Section 13(i) hereof or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives and the other Underwriters, other than defaulting Underwriters, for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwriters) reasonably incurred by the Representatives or the other Underwriters in connection herewith, up to a maximum aggregate amount of $300,000. (j) The Company will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus. (k) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (i) 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) (collectively, a “Disposition”) any Trust Units, or other securities of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, or securities convertible into or exchangeable for Trust Units, or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”), (ii) 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 Trust Units, whether any such transaction is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Trust Securities or (iv) 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; notwithstanding the foregoing if (x) during the last 17 days of the Lock-Up Period, the Trust issues a release concerning distributable cash or announces 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 distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent. (l) The Company will comply with all provisions of any undertakings contained in the Registration Statement. (m) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law. (n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with. (o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with. (p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9. (q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing Date. (r) The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date or the Additional Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may be.
Appears in 2 contracts
Samples: Underwriting Agreement (Whiting Usa Trust I), Underwriting Agreement (Whiting Petroleum Corp)
Of the Company. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus Supplement or the Prospectus Supplement and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A 430A, 430B or 430C under the Act is employed, when the Prospectus Supplement has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or Supplement, the Prospectus Supplement or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h) below, of any material change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement Statement, the Base Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement (as then amended or supplemented) untrue in any material respect as of the date made or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the ProspectusProspectus Supplement, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus Supplement (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters Underwriter with copies of the form of ProspectusProspectus Supplement, in such number as the Underwriters Underwriter may reasonably request, and file with the Commission such Prospectus Supplement in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the two signed original duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement Statement, the Base Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement that may, in the judgment of the Company or the Representatives Underwriter be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to Statement, the Base Prospectus, any Preliminary Prospectus Supplement, the Prospectus Supplement or any Issuer Free Writing Prospectus to the Representatives you and your counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Units Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 Base Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each the Underwriter as many copies as they it 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the any Preliminary ProspectusProspectus Supplement. Consistent with the provisions of Section 5.1(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters Underwriter and by dealers, prior to the date of the ProspectusProspectus Supplement, of each any Preliminary Prospectus Supplement so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus Underwriter the Prospectus Supplement is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each the Underwriter and each dealer, without charge, as many copies of the Prospectus Supplement and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of any Preliminary Prospectus Supplement, the Prospectus Supplement and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters Underwriter and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus Supplement is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters Underwriter is required to be set forth in the Prospectus Supplement (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus Supplement to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each the Underwriter who has previously requested ProspectusesProspectus Supplements, without charge, a reasonable number of copies thereof.
(i) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and time periods required by the Exchange Act.
(j) The Company will cooperate with you and counsel for the Underwriter in connection with the registration or qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided that in no event shall the Company 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 Shares, as contemplated by this Agreement and the Prospectus Supplement, in any jurisdiction where it is not now so subject. In the event that the qualification of the Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will use its best efforts to continue such qualifications, registrations and exemptions in effect for a period of two years after the date hereof.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) If this Agreement shall terminate or shall be terminated by the Company after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i11 hereof) hereof or if this Agreement shall be terminated by the Underwriters Underwriter because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives and the other Underwriters, other than defaulting Underwriters, Underwriter for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the UnderwritersUnderwriter, but excluding wages and salaries paid by the Representatives or the other UnderwritersUnderwriter) reasonably incurred by the Representatives or the other Underwriters Underwriter in connection herewith, up to a maximum aggregate amount of $300,000.
(j) The Company will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(km) For a period commencing on the date hereof and ending on the 180th 90th day after the date of the Prospectus Supplement (the “Lock-Up Period”), not to, directly or indirectly, (i1) 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) (collectively, a “Disposition”) any Trust Units, or other securities shares of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, Common Stock or securities convertible into or exchangeable for Trust UnitsCommon Stock (other than the Common Stock issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding convertible securities, options, warrants or rights), or sell or grant options, rights or warrants with respect to any Trust Units shares of Common Stock or securities convertible into or exchangeable for Trust Units Common Stock (collectively, “Trust Securities”other than the grant of options pursuant to option plans existing on the date hereof), (ii2) 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 Trust Unitsshares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Trust Units Common Stock or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Trust Securities shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or (iv4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives on behalf Underwriter, and to cause each officer and director of the UnderwritersCompany set forth on Schedule IV hereto to furnish to the Underwriter, prior to the Closing Date, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”); notwithstanding the foregoing foregoing, if (x1) during the last 17 days of the Lock-Up Period, the Trust Company issues a an earnings release concerning distributable cash or announces material news or a material event relating to the Trust Company occurs or (y2) prior to the expiration of the Lock-Up Period, the Trust Company announces that it will release distributable cash earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, Underwriter waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent.
(ln) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mo) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied withShares.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence timely file with NASDAQ all documents and notices required by NASDAQ of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing Datecompanies that have or will issue securities that are traded on The NASDAQ Global Market.
(r) The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date or the Additional Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may be.
Appears in 2 contracts
Samples: Underwriting Agreement (Jefferies Capital Partners Iv Lp), Underwriting Agreement (Carrols Restaurant Group, Inc.)
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h5.1(e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The If the Company elects, with the consent of the Representatives, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the two signed original duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly not file with any Rule 462 Registration Statement or any amendment to the Commission Registration Statement or make any amendment or supplement to the Registration Statement Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or the Prospectus that maysupplement and (ii) you have not reasonably objected to such filing, in the judgment of the Company amendment or the Representatives be required by the Act supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or requested by the Commissionsupplement.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 Preliminary Prospectus or the 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h5.1(e) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(he) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “"Prospectus Delivery Period”"), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section Sections 5.1(a) and 5.1(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided that in no event shall the Company 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 Shares, 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 Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of [1] year after the date hereof.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(i) During the period ending three years from the date hereof, the Company will furnish to you and, upon your request, to each of the other Underwriters,
(i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the Nasdaq Stock Market ("NASDAQ") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i12 hereof, other than clauses (iv) hereof or (v)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives you and the other Underwriters, other than defaulting Underwriters, Underwriters for all out-of-pocket expenses (including travel expenses and the reasonable fees and expenses disbursements of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwriters) reasonably in an amount up to $100,000 incurred by the Representatives or the other Underwriters you in connection herewith, up to a maximum aggregate amount of $300,000.
(jk) The Company will apply the net proceeds from the sale of the Units Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “"Use of Proceeds” " in the Prospectus.
(kl) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(m) For a period commencing on the date hereof and ending on the 180th day of 90 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without the prior written consent of Xxxxxxx Xxxxx & Associates, Inc., the Company will not, (the “Lock-Up Period”), not to, i) directly or indirectly, (i) offer for saleissue, sell, pledge offer or contract to sell or otherwise dispose of (or enter into transfer 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) (collectively, a “Disposition”) any Trust Units, or other securities shares of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, Common Stock or securities convertible into or exchangeable or exercisable for Trust Unitsshares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or sell or grant options, rights or warrants file any registration statement under the Act with respect to any Trust Units of the foregoing or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”), (ii) enter into any swap or other derivatives transaction agreement that transfers to anothertransfers, in whole or in part, any of directly or indirectly, the economic benefits or risks consequences of ownership of such Trust Units, Company Securities whether any such swap or transaction is to be settled by delivery of Trust Units Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect except to the registration Underwriters pursuant to this Agreement and except for grants of any Trust Securities options or (iv) publicly disclose restricted shares pursuant to the intention to do any Company's stock option, stock bonus or other stock plans or arrangements in effect as of the foregoing, date hereof and described in each case without the prior written consent Prospectus and except for issuances of shares of Common Stock upon the exercise of options outstanding as of the Representatives on behalf of the Underwriters; notwithstanding the foregoing if (x) during the last 17 days of the Lock-Up Period, the Trust issues a release concerning distributable cash or announces 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 distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives hereof under such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agentstock plans.
(ln) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(o) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mp) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9Shares.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence timely file with NASDAQ all documents and notices required by NASDAQ of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing Datecompanies that have or will issue securities that are traded on NASDAQ.
(r) The Company will comply with all agreements shall engage and satisfy all conditions on maintain, at its part to be complied with or satisfied pursuant to this Agreement on or prior to expense, a transfer agent and, if necessary under the Closing Date jurisdiction of its incorporation or the Additional Closing Daterules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the case may betransfer agent) for the Common Stock.
(s) The Company will continue to maintain the current key employee life insurance policy of $4.5 million on the life of Xxxxxxx X. Xxxxx, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may beCompany's Chief Executive Officer.
Appears in 1 contract
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h5.1(e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The If the Company elects, with the consent of the Representatives, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the two signed original duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly not file with any Rule 462 Registration Statement or any amendment to the Commission Registration Statement or make any amendment or supplement to the Registration Statement Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or the Prospectus that maysupplement and (ii) you have not reasonably objected to such filing, in the judgment of the Company amendment or the Representatives be required by the Act supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or requested by the Commissionsupplement.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 Preliminary Prospectus or the 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h5.1(e) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(he) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “"Prospectus Delivery Period”"), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section Sections 5.1(a) and 5.1(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided that in no event shall the Company 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 Shares, 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 Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of [__] years after the date hereof.
(g) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(h) During the period ending five years from the date hereof, the Company will furnish to you and, upon your request, to each of the other Underwriters, (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the "NASD") or the New York Stock Exchange ("NYSE") or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i12 hereof, other than clauses (i), (iv) hereof or (v)) or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives you and the other Underwriters, other than defaulting Underwriters, Underwriters for all reasonable out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwritersyou) reasonably incurred by the Representatives or the other Underwriters you in connection herewith, up to a maximum aggregate amount of $300,000.
(j) The Company will apply the net proceeds from the sale of the Units Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “"Use of Proceeds” " in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) For a period commencing on the date hereof and ending on the 180th day of 180 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act, without your prior written consent, the Company will not, (the “Lock-Up Period”), not to, i) directly or indirectly, (i) offer for saleissue, sell, pledge offer or contract to sell or otherwise dispose of (or enter into transfer 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) (collectively, a “Disposition”) any Trust Units, or other securities shares of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, Common Stock or securities convertible into or exchangeable or exercisable for Trust Unitsshares of Common Stock (collectively, "Company Securities") or any rights to purchase Company Securities, or sell or grant options, rights or warrants file any registration statement under the Act with respect to any Trust Units of the foregoing or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”), (ii) enter into any swap or other derivatives transaction agreement that transfers to anothertransfers, in whole or in part, any of directly or indirectly, the economic benefits or risks consequences of ownership of such Trust Units, Company Securities whether any such swap or transaction is to be settled by delivery of Trust Units Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect except to the registration Underwriters pursuant to this Agreement and except for grants of any Trust Securities options or (iv) publicly disclose restricted shares pursuant to the intention to do any Company's stock option, stock bonus or other stock plans or arrangements in effect as of the foregoing, date hereof and described in each case without the prior written consent Prospectus and except for issuances of shares of Common Stock upon the exercise of options outstanding as of the Representatives on behalf of the Underwriters; notwithstanding the foregoing if (x) during the last 17 days of the Lock-Up Period, the Trust issues a release concerning distributable cash or announces 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 distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives hereof under such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agentstock plans.
(lm) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mo) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied withShares.
(p) In order to document the Underwriters’ compliance The Company will timely file with the reporting NYSE all documents and withholding provisions notices required by the NYSE of companies that have or will issue securities that are traded on the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9NYSE.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock will provide to be listed, a registrar (which, if permitted by applicable laws and rules may be the Representatives evidence of such filings reasonably satisfactory to counsel same entity as the transfer agent) for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing DateCommon Stock.
(r) The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date or the Additional Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may be.
Appears in 1 contract
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Securities Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Securities Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h) belowhereof, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth properties or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Securities Act or any other applicable law. If at any time time, the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of under the Act before the close of business on the first business day immediately following the date hereofSecurities Act.
(b) The Upon written request, the Company will furnish to you, without charge, a photocopy of the two signed original duplicate originals, or certified copies thereof, of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Representatives Representative be required by the Securities Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives you and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Units Shares that would constitute an Issuer Free Writing Prospectus without your express prior written consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Securities Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Securities Act; 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 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h) hereof, the Company consents to the use, in accordance with the provisions of the Securities Act and with the applicable securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Securities Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Securities Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(34(a)(3) of the Securities Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Securities Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification, if you deem it reasonably necessary, of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided that in no event shall the Company 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 Shares, 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 Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(j) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act.
(k) During the period ending five years from the date hereof, the Company will furnish to you and, upon your request, to each of the other Underwriters, (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to shareholders or filed with the Commission, provided that the Company will be deemed to have furnished such proxy statement and reports to the Underwriters to the extent they are filed or furnished on XXXXX or made available on the Company’s website.
(l) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i12 hereof, other than clause (i)) hereof or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives you and the other Underwriters, other than defaulting Underwriters, Underwriters for all reasonable and documented out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the UnderwritersUnderwriters not otherwise paid by the Selling Shareholder, but excluding wages and salaries paid by the Representatives or the other Underwritersyou) reasonably incurred by the Representatives or the other Underwriters you in connection herewith, up herewith and the Company shall then be under no further liability to a maximum aggregate amount of $300,000any Underwriter except as provided by Section 7 and Section 8 hereof.
(jm) The Company will apply the net proceeds from the sale of the Units Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(kn) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), not tothe Company will not, directly or indirectly, (i1) 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 other person at any time in during the future of) (collectively, a “Disposition”) any Trust Units, or other securities of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(pLock-Up Period) of this Agreement) that are substantially similar to the Trust Units, any shares of Common Stock or securities convertible into or exchangeable for Trust UnitsCommon Stock (other than shares of Common Stock issued or issuable, including restricted stock awards described in the prospectus to be granted immediately upon the Closing, pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof, including the Company’s 2018 Equity and Incentive Plan (the “2018 Incentive Plan”), copies of which have been made available to the Underwriters and disclosed in the Time of Sale Information and the Prospectus, or pursuant to currently outstanding options, restricted stock or restricted stock units, warrants or rights), or pursuant to any employee stock ownership plan (“ESOP”) that may be established by the Company or the Company’s existing deferred compensation plan (the “Deferred Compensation Plan”) that may be amended to include Class A Common Stock as an investment option, or sell or grant options, rights or warrants with respect to any Trust Units shares of Common Stock or securities convertible into or exchangeable for Trust Units Common Stock (collectivelyother than the grant of options, “Trust Securities”restricted stock or restricted stock units or warrants or rights pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof and disclosed in the Time of Sale Information and the Prospectus, in each case, copies of which have been made available to the Underwriters), (ii2) 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 Trust Unitsshares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Trust Units Common Stock or other securities, in cash or otherwise, (iii3) file or cause to be filed a registration statementstatement (other than a registration statement on Form X-0, Xxxx X-0 or otherwise filed pursuant to the Registration Rights Agreement between the Company and MSF, dated as of June 12, 2018 (the “Registration Rights Agreement”)), including any amendments, with respect to the registration of any Trust Securities shares of Common Stock or securities convertible, exercisable or exchangeable into shares of Common Stock or any other securities of the Company or (iv4) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives Representative on behalf of the Underwriters; notwithstanding provided that this sentence shall not apply to any shares of Common Stock issued or issuable in connection with any stock split, reverse stock split or stock dividend, or any merger, consolidation, joint venture, strategic alliance or other similar transaction with another company whether or not registered on Form S-4, provided that the foregoing if (x) during the last 17 days recipient of such shares of Common Stock who are directors, executive officers and 10% or greater holders of voting common stock of the Lock-Up Period, the Trust issues target in a release concerning distributable cash or announces material news or a material event relating transaction described in Commission Rule 145 agree in writing to the Trust occurs or (y) prior to the expiration be bound by an agreement of the Lock-Up Period, the Trust announces that it will release distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed same remaining duration and terms as set forth in this Section 5.1(k) 5.1(n). The Company shall continue to apply until the expiration cause each officer, director and shareholder of the 18-day period beginning Company set forth on Schedule IV hereto to furnish to the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material eventRepresentative, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect prior to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent.
(l) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(m) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes a letter or letters, substantially in the form of Exhibit A hereto (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with“Lock-Up Agreements”).
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing Date.
(r) The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior Prior to the Closing Date or the Additional Closing Date, as the case may be, and the Company will advise the Underwriters prior furnish to the Closing Date or the Additional Closing Dateyou, as the case may bepromptly as possible, if copies of any unaudited interim consolidated financial statements to be made on behalf of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the certificate contemplated Prospectus.
(p) [Reserved]
(q) The Company will timely file with Nasdaq all documents and notices required by Section 9 hereof would be inaccurate Nasdaq of companies that have or will issue securities that are traded on Nasdaq.
(r) The Company shall engage and maintain, at its expense, a transfer agent and, if made as necessary under the jurisdiction of the Closing Date its incorporation or the Additional Closing Daterules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the case may betransfer agent) for the Common Stock.
(s) The Company will comply with all applicable securities and other laws, rules and regulations in each state in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Mercantil Bank Holding Corp)
Of the Company. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(a) The Company will use its reasonable best efforts to cause any amendments to the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h5.1(f) belowhereof, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters Underwriter with copies of the form of Prospectus, in such number as the Underwriters Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the signed original of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file (or cause to be filed, if applicable) with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives Underwriter be required by the Act or requested by the Commission.
(dc) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives you and your counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall will not be unreasonably withheld or delayed.
(ed) The Company will not make any offer relating to the Units Common Stock that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(fe) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each the Underwriter as many copies as they it 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(hf) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters Underwriter a prospectus is required by the Act to be delivered in connection with sales by any the Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each the Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of any Preliminary Prospectus, the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters Underwriter and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any the Underwriter or any dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters Underwriter is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectusesthe Underwriter, without charge, a reasonable number of copies thereof.
(ig) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and time periods required by the Exchange Act.
(h) If this Agreement shall terminate or shall be terminated after execution pursuant to Section 13(i) hereof or if this Agreement shall be terminated by the Underwriters Underwriter because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives and the other Underwriters, other than defaulting Underwriters, you for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the UnderwritersUnderwriter, but excluding wages and salaries paid by the Representatives or the other UnderwritersUnderwriter) reasonably incurred by the Representatives or the other Underwriters you in connection herewith, up to a maximum aggregate amount of $300,000.
(j) The Company will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(k) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (i) 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) (collectively, a “Disposition”) any Trust Units, or other securities of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, or securities convertible into or exchangeable for Trust Units, or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”), (ii) 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 Trust Units, whether any such transaction is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Trust Securities or (iv) 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; notwithstanding the foregoing if (x) during the last 17 days of the Lock-Up Period, the Trust issues a release concerning distributable cash or announces 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 distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent.
(l) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mj) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable lawShares.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing Date.
(r) The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date or the Additional Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (Health Insurance Innovations, Inc.)
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to have become effective, if it has not already become effective, and . The Company will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus Pre-Pricing Prospectus, free writing prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus Pre-Pricing Prospectus, free writing prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h5(g) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement Statement, Time of Sale Information, free writing prospectus or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the two signed original duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to Statement, the Prospectus or any Issuer Free Writing Prospectus to the Representatives you and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 Preliminary most recent Pre-Pricing Prospectus or the 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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.;
(gf) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Pre-Pricing Prospectus. Consistent with the provisions of Section 5.1(h5(g) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Pre-Pricing Prospectus so furnished by the Company.
(hg) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(h) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided, that in no event shall the Company 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 Shares, 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 Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws.
(i) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(j) During the period ending three years from the date hereof, upon your request, the Company will furnish to you and to each of the other Underwriters, (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the “NASD”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i12 or Section 13(ii), (iii), or (iv) hereof or if this Agreement shall be terminated by hereof), then the Company will reimburse you and the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives and the other Underwriters, other than defaulting Underwriters, through you for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwriters) you), reasonably incurred by the Representatives or the other Underwriters in connection herewith, up to a maximum aggregate amount of $300,000.
(jl) The Company will apply the net proceeds from the sale of the Units Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(km) For a period commencing on the date hereof and ending on the 180th 120th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (i1) 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) (collectively, a “Disposition”) any Trust Units, or other securities shares of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, Common Stock or securities convertible into or exchangeable for Trust Units, Common Stock or sell or grant options, rights or warrants with respect to any Trust Units shares of Common Stock or securities convertible into or exchangeable for Trust Units Common Stock (collectively, “Trust Securities”other than the grant of options pursuant to option plans existing on the date hereof), (ii2) 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 Trust Unitsshares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Trust Units Common Stock or other securities, in cash or otherwise, (iii3) other than as contemplated by this Agreement, file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Trust Securities shares of Common Stock or securities convertible, exercisable or exchangeable into Common Stock or any other securities of the Company or (iv4) 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; notwithstanding the foregoing foregoing, if (x1) during the last 17 days of the Lock-Up Period, the Trust Company issues a an earnings release concerning distributable cash or announces material news or a material event relating to the Trust Company occurs or (y2) prior to the expiration of the Lock-Up Period, the Trust Company announces that it will release distributable cash earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) The foregoing sentence shall not restrict or prohibit apply to (A) the undersigned from pledging or otherwise granting a security interest with respect Shares to be sold hereunder, (B) any Trust Securities held shares of Common Stock issued by the undersigned Company pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights, or (C) the issuance and sale of shares of Common Stock in an amount not to exceed 5% of the currently issued and outstanding shares of Common Stock, but only to the extent that certain Third Amended and Restated Credit Agreementsuch issuances are for full or partial consideration for the acquisition of shares of capital stock or assets of a third party through a merger, dated stock or asset purchase or similar transaction, provided, that such third party agrees to be bound in writing by the restrictions set forth in this paragraph as of August 31, 2005, among if such third party were the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent.
(ln) The Company will cause each person set forth on Schedule IV hereto to furnish to the Representatives, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A-1 and Exhibit A-2 hereto (the “Lock-Up Agreements”); notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Company issues an earnings release or announces material news or a material event relating to the Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company 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 the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing.
(o) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mq) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing DateShares.
(r) The Company will comply timely file with NASDAQ all agreements documents and satisfy notices required of companies that have or will issue securities that are traded on NASDAQ.
(s) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Common Stock.
(t) During the Prospectus Delivery Period, the Company will file all conditions on its part documents required to be complied filed with or satisfied the Commission pursuant to this Agreement on or prior to the Closing Date or the Additional Closing DateSections 13, as the case may be, 14 and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf 15 of the Company Exchange Act in the certificate contemplated manner and within the time periods required by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may beExchange Act.
Appears in 1 contract
Samples: Underwriting Agreement (Atlantic Tele Network Inc /De)
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the two signed original duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives Representative and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 Preliminary Prospectus or the 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the Units, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by all dealers to whom Units may be sold, both in connection with the offering and sale of the Units and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i12 hereof) hereof or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives Representative and the other Underwriters, other than defaulting Underwriters, for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives Representative or the other Underwriters) reasonably incurred by the Representatives Representative or the other Underwriters in connection herewith, up to a maximum aggregate amount of $300,000.
(j) The Company will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(k) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (i) 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) (collectively, a “Disposition”) any Trust Units, or other securities of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p6.1(m) of this Agreement) that are substantially similar to the Trust Units, or securities convertible into or exchangeable for Trust Units, or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”), (ii) 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 Trust Units, whether any such transaction is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Trust Securities or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives Representative on behalf of the Underwriters; notwithstanding the foregoing if (x) during the last 17 days of the Lock-Up Period, the Trust issues a release concerning distributable cash or announces 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 distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the RepresentativesRepresentative, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent.
(l) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(m) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(qp) Not more than sixty business five days following the Closing Date, the Company will file the Conveyance and that certain Second Amendment to the Mortgage, Assignment, Security Agreement, Fixture Filing and Financing Statement to be granted by the Company, as mortgagor, in favor of Bank of America, N.A., as agent, in the counties in the states listed on Schedule IV Kansas and Colorado covering the leases covered by the Conveyance. The Company will provide to the Representatives Underwriters evidence of such filings reasonably satisfactory to counsel for the Representatives Underwriters as promptly as practicable following the time of such filings, and in any event not more than seventy-five fifteen business days following the Closing Date.
(rq) Not more than five days following the Closing Date, the Company will file (i) a UCC-1 financing statement in Topeka, Kansas giving notice of the security interest created by the Conveyance, that certain Assignment of Hedge Proceeds to be entered into between the Company and the Trustee and that certain Pledge and Security Agreement to be entered into among the Company, the Selling Unitholders and Bank of America, N.A., as administrative agent, and (ii) a UCC-1 financing statement in Denver, Colorado giving notice of the security interest created by the Conveyance. The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior provide to the Closing Date or Underwriters evidence of such filings reasonably satisfactory to counsel for the Additional Underwriters as promptly as practicable following the time of such filings, and in any event not more than five business days following the Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may be.
Appears in 1 contract
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause any amendments to the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h5.1(i) belowhereof, of any change in the Company’s or any subsidiary’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the signed original of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file (or cause to be filed, if applicable) with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives Representatives, based on the reasonable advice of its counsel, be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives you and counsel for the Underwriters and obtain your consent for review, a reasonable period of time prior to the filing any of those with the Commission, which consent shall not be unreasonably withheld or delayedsuch document.
(e) The Company will not make any offer relating to the Units Shares that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; and if at any time after the date hereof when a prospectus is required by the Act to be delivered in connection with any sale of shares by any Underwriter or dealer (the “Prospectus Delivery Period”), 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 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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.
(g) If at any time following the distribution of any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act (“Testing-the-Waters Communication”) that is a written communication within the meaning of Rule 405 under the Act (“Written Testing-the-Waters Communications”) there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Representatives of (A) any distribution by the Company of Written Testing-the-Waters Communications and (B) any request by the Commission for information concerning the Written Testing-the-Waters Communications.
(h) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h5.1(i) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(hi) As soon after During the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(34(a)(3) of the Act and Rule 174 thereunderunder the Act, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested ProspectusesUnderwriter, without charge, a reasonable number of copies thereofof Prospectuses.
(ij) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(k) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided that in no event shall the Company or its subsidiaries 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 Shares, 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 Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(l) [Reserved].
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i11 hereof) hereof or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives you and the other Underwriters, other than defaulting Underwriters, Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwriters) reasonably incurred by the Representatives or the other Underwriters you in connection herewith, up to a maximum aggregate amount of $300,000.
(j) The Company will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(kn) For a period commencing on the date hereof and ending on the 180th 90th day after the date of the Prospectus (the “Lock-Up Period”), not tothe Company will not, directly or indirectly, (i1) offer for sale, issue, 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) (collectively, a “Disposition”) any Trust Unitsshares of Common Stock, or other securities of the Trustany options, warrants or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, or securities convertible into or exercisable or exchangeable for Trust Unitsfor, or sell any rights to purchase or grant optionsotherwise acquire, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units Common Stock (collectively, the “Trust SecuritiesLock-Up Shares”), (ii2) 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 Trust UnitsLock-Up Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Trust Units Lock-Up Shares or other securities, in cash or otherwise, or (iii3) file or cause to be filed under the Act a registration statement, including any amendments, with respect to the registration of any Trust Securities Lock-Up Shares or (iv4) 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, and to cause each officer and director of the Company set forth on Schedule IV hereto to furnish to the Representatives, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”). The foregoing sentence shall not apply to (A) the Common Stock to be sold hereunder, (B) any Lock-Up Shares to be issued upon the grant, exercise or payment of an option, warrant or other equity award or the conversion of a security outstanding on the date hereof, including the issuance of Common Stock upon the exchange of LLC Units, (C) any Lock-Up Shares granted pursuant to existing employee benefit plans of the Company, (D) any Lock-Up Shares issued pursuant to any existing non-employee director stock plan or dividend reinvestment plan, (E) the filing by the Company of any registration statement on Form S-8, or (F) any disposition of Lock-Up Shares to a bona fide third party pursuant to a tender offer or any other transaction, including, without limitation, a merger, consolidation or other business combination, involving a change of control of the Company (including, without limitation, entering into any lock-up, voting or similar agreement pursuant to which the Company agrees to transfer, sell, tender or otherwise dispose of Lock-Up Shares in connection with any such transaction or vote any Lock-Up Shares in favor of any such transaction); notwithstanding provided, that, in the foregoing if case of clause (xF) during only, (i) the last 17 days of per-share consideration for the Lock-Up Period, Shares transferred as described above shall be greater than the Trust issues a release concerning distributable cash or announces material news or a material event relating to purchase price per Share for the Trust occurs or Firm Shares; (yii) prior to the expiration of the all Lock-Up PeriodShares subject to this Section 5.1(n) that are not so transferred, the Trust announces sold, tendered or otherwise disposed of remain subject to this Section 5.1(n); and (iii) it shall be a condition of transfer, sale, tender or other disposition that it will release distributable cash results during the 16-day period beginning on the last day of the if such tender offer or other transaction is not completed, any Lock-Up Period, then Shares subject to this Section 5.1(n) shall remain subject to the restrictions imposed in this Section 5.1(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent5.1(n).
(lo) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(p) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mq) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing DateShares.
(r) The Company will comply timely file with Nasdaq Stock Market LLC (“NASDAQ”) all agreements documents and satisfy all conditions notices required by NASDAQ of companies that have or will issue securities that are traded on its part NASDAQ.
(s) The Company will promptly notify the Representatives if the Company ceases to be complied with or satisfied pursuant to this Agreement on or an “emerging growth company,” as defined in Section 2(a) of the Act (an “Emerging Growth Company”) at any time prior to the Closing Date or later of (A) the Additional Closing Date, as the case may be, and will advise the Underwriters prior time when a prospectus relating to the Closing Date offering or sale of the Additional Closing Date, as Shares is not required by the case may be, if any statements Act to be made on behalf delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) and (B) completion of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may beLock-Up Period.
Appears in 1 contract
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h5(h) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the two signed original duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives you and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Trust Units that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h5(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “"Prospectus Delivery Period”"), and for so long a period as you may request for the distribution of the Units, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the several Underwriters and by all dealers to whom Units may be sold, both in connection with the offering and sale of the Units and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a5(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you 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 you may reasonably designate and will 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 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 shall so advise you promptly in writing. The Company will use its best efforts to qualify or register the Trust Units for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of five years after the date hereof.
(j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i12 hereof) hereof or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives you and the other Underwriters, other than defaulting Underwriters, Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwritersyou) reasonably incurred by the Representatives or the other Underwriters you in connection herewith, up to a maximum aggregate amount of $300,000.
(jk) The Company will apply the net proceeds from the sale of the Units to be sold by it hereunder in accordance in all material respects with the statements under the caption “"Use of Proceeds” " in the Prospectus.
(kl) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “"Lock-Up Period”"), not to, directly or indirectly, (i) 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) (collectively, a “Disposition”) any Trust Units, or other securities of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p6(m) of this Agreement) that are substantially similar to the Trust Units, or securities convertible into or exchangeable for Trust Units, or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units (collectively, “"Trust Securities”"), (ii) 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 Trust Units, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Trust Units or other securities, in cash or otherwise, otherwise or (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Trust Securities or (iv) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of the Representatives Representative on behalf of the Underwriters; notwithstanding the foregoing foregoing, if (xi) during the last 17 days of the Lock-Up Period, the Trust issues a release concerning distributable cash or announces material news or a material event relating to the Trust occurs or (yii) prior to the expiration of the Lock-Up Period, the Trust announces that it will release distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) the preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the RepresentativesRepresentative, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent.
(lm) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mo) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable lawUnits.
(np) The Company will timely file with the New York Stock Exchange (the "NYSE") all documents and notices required by the NYSE of companies that have or will issue securities that are traded on the NYSE.
(q) The Company shall engage and maintain, at its expense, a transfer agent and, if necessary under the jurisdiction of its incorporation or the rules of any national securities exchange on which the Trust Units will be listed, a registrar (which, if permitted by applicable laws and rules may be the same entity as the transfer agent) for the Trust Units.
(r) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(ps) In order to document the Underwriters’ ' compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “"Code”"), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing Date.
(r) The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date or the Additional Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may be.
Appears in 1 contract
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, ; (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, ; (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, ; (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes purposes; and (v) within the period of time Prospectus Delivery Period referred to in Section 5.1(h5.1(d) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The If the Company elects, with the consent of the Representative, to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Rule 434 Prospectus (including copies of a term sheet that complies with the requirements of Rule 434 under the Act), in such number as the Underwriters may reasonably request, and file with the Commission in accordance with Rule 424(b) of the Act the form of Prospectus complying with Rule 434(b)(2) of the Act before the close of business on the first business day immediately following the date hereof. If the Company elects not to rely on Rule 434 under the Act, the Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the two signed original duplicate originals of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain your consent prior to filing any of those with the Commission, which consent shall not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 Preliminary Prospectus or the 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter well as many copies as they 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h5.1(d) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(hc) The Company will not file any Rule 462 Registration Statement or any amendment to the Registration Statement or make any amendment or supplement to the Prospectus unless (i) you shall have previously been advised thereof and been given a reasonable opportunity to review such filing, amendment or supplement and (ii) you have not reasonably objected to such filing, amendment or supplement after being so advised and having been given a reasonable opportunity to review such filing, amendment or supplement.
(d) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section Sections 5.1(a) and 5.1(c) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(e) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided that in no event shall the Company 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 Shares, 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 Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing upon its receipt of written notice thereof. The Company will use its best efforts to qualify or register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for a period of two years after the date hereof.
(f) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a twelve-month period commencing after the effective date of the Registration Statement and the Rule 462 Registration Statement, if any, and ending not later than 15 months thereafter, within 75 days after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(g) During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Securities Exchange Act of 1934, as amended and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) within the time periods required by the Exchange Act.
(h) During the period ending five years from the date hereof, the Company will furnish to you and, upon your request, to each of the other Underwriters: (i) as soon as available, a copy of each proxy statement, quarterly or annual report or other report of the Company mailed to stockholders or filed with the Commission, the National Association of Securities Dealers, Inc. (the “NASD”) or the Nasdaq Stock Market (“NASDAQ”) or any national securities exchange and (ii) from time to time such other information concerning the Company as you may reasonably request.
(i) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i) hereof 12 hereof), or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives you and the other Underwriters, other than defaulting Underwriters, Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwritersyou) reasonably incurred by the Representatives or the other Underwriters you in connection herewith, up to a maximum aggregate amount of $300,000.
(j) The Company will apply the net proceeds from the sale of the Units Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(k) If Rule 430A under the Act is employed, the Company will timely file the Prospectus or term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b) under the Act.
(l) For a period commencing on the date hereof and ending on the 180th day of 180 days after the date of the Prospectus first filed pursuant to Rule 424(b) under the Act (the “Lock-Up Period”), not towithout your prior written consent, the Company will not: (i) directly or indirectly, (i) offer for saleissue, sell, pledge offer or contract to sell or otherwise dispose of (or enter into transfer 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) (collectively, a “Disposition”) any Trust Units, or other securities shares of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, Common Stock or securities convertible into or exchangeable or exercisable for Trust Unitsshares of Common Stock (collectively, “Company Securities”) or any rights to purchase Company Securities, or sell or grant options, rights or warrants file any registration statement under the Act with respect to any Trust Units of the foregoing or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”), (ii) enter into any swap or other derivatives transaction agreement that transfers to anothertransfers, in whole or in part, any of directly or indirectly, the economic benefits or risks consequences of ownership of such Trust Units, Company Securities whether any such swap or transaction is to be settled by delivery of Trust Units Common Stock or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect except to the registration Underwriters pursuant to this Agreement and except for grants of any Trust Securities options pursuant to the Company’s stock option, stock bonus or (iv) publicly disclose other stock plans or arrangements in effect as of the intention to do any date hereof and described in the Prospectus, and except for issuances of shares of Common Stock upon the exercise of options outstanding as of the date hereof under such stock plans. Notwithstanding the foregoing, in each case without the prior written consent of the Representatives on behalf of the Underwriters; notwithstanding the foregoing if (xi) during the last 17 days of the Lock-Up Period, the Trust Company issues a an earnings release concerning distributable cash or announces material news or a material event relating to the Trust occurs Company occurs; or (yii) prior to the expiration of the Lock-Up Period, the Trust Company announces that it will release distributable cash earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then ; the restrictions imposed in this Section 5.1(k) Agreement shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement occurrence of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent.
(lm) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any quarterly period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(n) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mo) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied withShares.
(p) In order to document The Company will timely file with NASDAQ all documents and notices required by NASDAQ of companies that have or will issue securities that are traded on the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9NASDAQ.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to shall engage and maintain, at its expense, a transfer agent and, if necessary under the Representatives evidence jurisdiction of such filings reasonably satisfactory to counsel its incorporation or the rules of any national securities exchange on which the Common Stock is listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing DateCommon Stock.
(r) The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date or the Additional Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may be.
Appears in 1 contract
Of the Company. The Company covenants and agrees with the several Underwriters Underwriter as follows:
(a) The Company will use its reasonable best efforts to cause any amendments to the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and of the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h) belowhereof, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters Underwriter with copies of the form of Prospectus, in such number as the Underwriters Underwriter may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the two signed original copies of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives Underwriter be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives you and counsel for the Underwriters Underwriter, and obtain your consent prior to filing any of those with the Commission, which consent shall will not be unreasonably withheld or delayed.
(e) The Company will not make any offer relating to the Units Shares that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each the Underwriter as many copies as they it 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.
(g) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters Underwriter and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters Underwriter, a prospectus is required by the Act to be delivered in connection with sales by any the Underwriter or a any dealer (the “Prospectus Delivery Period”), and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each the Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they it may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters Underwriter and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any the Underwriter or any dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(34(a)(3) of the Act and Rule 174 thereunder, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters Underwriter is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a) hereof, file with the Commission and use its reasonable best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each the Underwriter who has previously requested Prospectuses, without charge, a reasonable number of copies thereof.
(i) If During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission pursuant to Sections 13, 14 and 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(j) The Company will cooperate with you and counsel for the Underwriter in connection with the registration or qualification of the Shares for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided that in no event shall the Company 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 Shares, 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 Shares in any jurisdiction is suspended, the Company shall terminate so advise you promptly in writing. The Company will use its reasonable best efforts to qualify or shall be terminated register its Common Stock for sale in non-issuer transactions under (or obtain exemptions from the application of) the Blue Sky laws of each state where necessary to permit market making transactions and secondary trading and will comply with such Blue Sky laws and will continue such qualifications, registrations and exemptions in effect for so long as required for the distribution of the Shares, but in no event beyond one year after execution pursuant to Section 13(ithe date hereof.
(k) hereof or if If this Agreement shall be terminated by the Underwriters Underwriter because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives and the other Underwriters, other than defaulting Underwriters, you for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the UnderwritersUnderwriter, but excluding wages and salaries paid by the Representatives or the other Underwritersyou) reasonably incurred by the Representatives or the other Underwriters you in connection herewith, up to a maximum aggregate amount of $300,000.
(jl) The To the extent not publicly filed, prior to the Closing Date, the Company will apply the net proceeds from the sale furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Units Company and its consolidated subsidiaries for any quarterly financial period subsequent to be sold the periods covered by it hereunder the financial statements included or incorporated by reference in accordance in all material respects with the statements under Registration Statement, the caption “Use Time of Proceeds” in Sale Information and/or the Prospectus.
(k) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the “Lock-Up Period”), not to, directly or indirectly, (i) 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) (collectively, a “Disposition”) any Trust Units, or other securities of the Trust, or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, or securities convertible into or exchangeable for Trust Units, or sell or grant options, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units (collectively, “Trust Securities”), (ii) 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 Trust Units, whether any such transaction is to be settled by delivery of Trust Units or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of any Trust Securities or (iv) 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; notwithstanding the foregoing if (x) during the last 17 days of the Lock-Up Period, the Trust issues a release concerning distributable cash or announces 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 distributable cash results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this Section 5.1(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent.
(lm) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mn) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable law.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied withShares.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide use commercially reasonable efforts to effect and maintain the Representatives evidence of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing Date.
(r) The Company will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date or the Additional Closing Date, as the case may be, and will advise the Underwriters prior to the Closing Date or the Additional Closing Date, as the case may be, if any statements to be made on behalf listing of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may beShares on The NASDAQ Global Select Market (“NASDAQ”).
Appears in 1 contract
Of the Company. The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration Statement and any amendments thereto to become effective, if it has not already become effective, and will advise you promptly and, if requested by you, will confirm such advice in writing (i) when the Registration Statement has become effective and the time and date of any filing of any post-effective Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus and the time and date that any post-effective amendment to the Registration Statement becomes effective, (ii) if Rule 430A under the Act is employed, when the Prospectus has been timely filed pursuant to Rule 424(b) under the Act, (iii) of the receipt of any comments of the Commission, or any request by the Commission for amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Units Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purposes and (v) within the period of time referred to in Section 5.1(h5.1(i) belowhereof, of any change in the Company’s or any subsidiary’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of any event that comes to the attention of the Company that makes any statement made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue in any material respect or that requires the making of any additions thereto or changes therein in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading in any material respect, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other applicable law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will make every reasonable effort to obtain the withdrawal or lifting of such order at the earliest possible time. The Company will provide the Underwriters with copies of the form of Prospectus, in such number as the Underwriters may reasonably request, and file with the Commission such Prospectus in accordance with Rule 424(b) of under the Act before the close of business on the first business day immediately following the date hereof.
(b) The Company will furnish to you, without charge, a photocopy of the signed original of the Registration Statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits thereto, and will also furnish to you, without charge, such number of conformed copies of the Registration Statement as originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file (or cause to be filed, if applicable) with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Company or the Representatives Representatives, based on the reasonable advice of its counsel, be required by the Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to the Registration Statement or to the Prospectus or any Issuer Free Writing Prospectus to the Representatives you and counsel for the Underwriters and obtain your consent for review, a reasonable period of time prior to the filing any of those with the Commission, which consent shall not be unreasonably withheld or delayedsuch document.
(e) The Company will not make any offer relating to the Units Shares that would constitute an Issuer Free Writing Prospectus without your prior consent, which consent shall not be unreasonably withheld or delayed.
(f) The Company will retain in accordance with the Act all Issuer Free Writing Prospectuses not required to be filed pursuant to the Act; 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 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 you and, upon your request, to file such document (if required to be filed pursuant to the Act) and to prepare and furnish without charge to each Underwriter as many copies as they 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.
(g) If at any time following the distribution of any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act (“Testing-the-Waters Communication”) that is a written communication within the meaning of Rule 405 under the Act (“Written Testing-the-Waters Communications”) there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Company will promptly notify the Representatives of (A) any distribution by the Company of Written Testing-the-Waters Communications and (B) any request by the Commission for information concerning the Written Testing-the-Waters Communications.
(h) Prior to the execution and delivery of this Agreement, the Company has delivered or will deliver to you, without charge, in such quantities as you have reasonably requested or may hereafter reasonably request, copies of each form of the Preliminary Prospectus. Consistent with the provisions of Section 5.1(h5.1(i) hereof, the Company consents to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(hi) As soon after the execution and delivery of this Agreement as is practicable and thereafter from time to time for such period as in the reasonable opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or a dealer (the “Prospectus Delivery Period”)dealer, and for so long a period as you may request for the distribution of the UnitsShares, the Company will deliver to each Underwriter and each dealer, without charge, as many copies of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) as they may reasonably request. The Company consents to the use of the Prospectus and the Time of Sale Information (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Units Shares are offered by the several Underwriters and by all dealers to whom Units Shares may be sold, both in connection with the offering and sale of the Units Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If at any time prior to the later of (i) the completion of the distribution of the Units Shares pursuant to the offering contemplated by the Registration Statement or (ii) the expiration of prospectus delivery requirements with respect to the Units Shares under Section 4(34(a)(3) of the Act and Rule 174 thereunderunder the Act, any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with the Act or any other law, the Company will forthwith prepare and, subject to Section 5.1(a) hereof, file with the Commission and use its best efforts to cause to become effective as promptly as possible an appropriate supplement or amendment thereto, and will furnish to each Underwriter who has previously requested ProspectusesUnderwriter, without charge, a reasonable number of copies thereofof Prospectuses.
(ij) The Company will cooperate with you and counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may reasonably designate and will 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 Shares; provided that in no event shall the Company or its subsidiaries 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 Shares, 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 Shares in any jurisdiction is suspended, the Company shall so advise you promptly in writing.
(k) The Company will make generally available to its security holders a consolidated earnings statement (in form complying with the provisions of Rule 158 under the Act), which need not be audited, covering a twelve-month period commencing after the Effective Date and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(l) [Reserved].
(m) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (except pursuant to a termination under Section 13(i11 hereof) hereof or if this Agreement shall be terminated by the Underwriters because of any inability, failure or refusal on the part of the Company or the Trust to perform in all material respects any agreement herein or to comply in all material respects with any of the terms or provisions hereof or to fulfill in all material respects any of the conditions of this Agreement, the Company agrees to reimburse the Representatives you and the other Underwriters, other than defaulting Underwriters, Underwriters for all out-of-pocket expenses (including travel expenses and reasonable fees and expenses of counsel for the Underwriters, but excluding wages and salaries paid by the Representatives or the other Underwriters) reasonably incurred by the Representatives or the other Underwriters you in connection herewith, up to a maximum aggregate amount of $300,000.
(jn) The Company will apply the net proceeds from the sale of the Units Company Shares to be sold by it hereunder in accordance in all material respects with the statements under the caption “Use of Proceeds” in the Prospectus.
(ko) For a period commencing on the date hereof and ending on the 180th 90th day after the date of the Prospectus (the “Lock-Up Period”), not tothe Company will not, directly or indirectly, (i1) offer for sale, issue, 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) (collectively, a “Disposition”) any Trust Unitsshares of Common Stock, or other securities of the Trustany options, warrants or other securities that are derived from the Subject Interests (as defined in the Conveyance, which is defined in Section 6(p) of this Agreement) that are substantially similar to the Trust Units, or securities convertible into or exercisable or exchangeable for Trust Unitsfor, or sell any rights to purchase or grant optionsotherwise acquire, rights or warrants with respect to any Trust Units or securities convertible into or exchangeable for Trust Units Common Stock (collectively, the “Trust SecuritiesLock-Up Shares”), (ii2) 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 Trust UnitsLock-Up Shares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Trust Units Lock-Up Shares or other securities, in cash or otherwise, or (iii3) file or cause to be filed under the Act a registration statement, including any amendments, with respect to the registration of any Trust Securities Lock-Up Shares or (iv4) 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, and to cause each officer and director of the Company set forth on Schedule IV hereto to furnish to the Representatives, prior to the date hereof, a letter or letters, substantially in the form of Exhibit A hereto (the “Lock-Up Agreements”). The foregoing sentence shall not apply to (A) the Common Stock to be sold hereunder, (B) any Lock-Up Shares to be issued upon the grant, exercise or payment of an option, warrant or other equity award or the conversion of a security outstanding on the date hereof, including the issuance of Common Stock upon the exchange of membership units of the Subsidiary (“LLC Units”), (C) any Lock-Up Shares granted pursuant to existing employee benefit plans of the Company, (D) any Lock-Up Shares issued pursuant to any existing non-employee director stock plan or dividend reinvestment plan, (E) the filing by the Company of any registration statement on Form S-8, or (F) any disposition of Lock-Up Shares to a bona fide third party pursuant to a tender offer or any other transaction, including, without limitation, a merger, consolidation or other business combination, involving a change of control of the Company (including, without limitation, entering into any lock-up, voting or similar agreement pursuant to which the Company agrees to transfer, sell, tender or otherwise dispose of Lock-Up Shares in connection with any such transaction or vote any Lock-Up Shares in favor of any such transaction); notwithstanding provided, that, in the foregoing if case of clause (xF) during only, (i) the last 17 days of per-share consideration for the Lock-Up Period, Shares transferred as described above shall be greater than the Trust issues a release concerning distributable cash or announces material news or a material event relating to purchase price per Share for the Trust occurs or Firm Shares; (yii) prior to the expiration of the all Lock-Up PeriodShares subject to this Section 5.1(o) that are not so transferred, the Trust announces sold, tendered or otherwise disposed of remain subject to this Section 5.1(o); and (iii) it shall be a condition of transfer, sale, tender or other disposition that it will release distributable cash results during the 16-day period beginning on the last day of the if such tender offer or other transaction is not completed, any Lock-Up Period, then Shares subject to this Section 5.1(o) shall remain subject to the restrictions imposed in this Section 5.1(k) shall continue to apply until the expiration of the 18-day period beginning on the date of issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives, on behalf of the Underwriters, waives such extension in writing. In addition, this Section 5.1(k) shall not restrict or prohibit the undersigned from pledging or otherwise granting a security interest with respect to any Trust Securities held by the undersigned pursuant to that certain Third Amended and Restated Credit Agreement, dated as of August 31, 2005, among the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A., as administrative agent5.1(o).
(lp) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will furnish to you, as promptly as possible, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any period subsequent to the periods covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(mr) The Company will not at any time, directly or indirectly, take any action designed, or which might reasonably be expected to cause or result in, or which will constitute, stabilization or manipulation of the price of the Trust Units shares of Common Stock to facilitate the sale or resale of any of the Units in violation of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”), the Act or other applicable lawShares.
(n) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Firm Units to be sold by the Company to the Underwriters hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(o) On the Additional Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the sale and transfer of the Additional Units to be sold by the Company to the Underwriters, if any, hereunder will have been fully paid for by the Company and all laws imposing such taxes will have been fully complied with.
(p) In order to document the Underwriters’ compliance with the reporting and withholding provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, with respect to the transactions herein contemplated, the Company shall deliver to you at least two days prior to the Closing Date and the Additional Closing Date, as the case may be, a properly completed and executed United States Treasury Department Substitute Form W-9.
(q) Not more than sixty business days following the Closing Date, the Company will file the Conveyance in the counties in the states listed on Schedule IV covering the leases covered by the Conveyance. The Company will provide to the Representatives evidence of such filings reasonably satisfactory to counsel for the Representatives as promptly as practicable following the time of such filings, and in any event not more than seventy-five business days following the Closing Date.
(rs) The Company will comply timely file with Nasdaq Stock Market LLC (“NASDAQ”) all agreements documents and satisfy all conditions notices required by NASDAQ of companies that have or will issue securities that are traded on its part NASDAQ.
(t) The Company will promptly notify the Representatives if the Company ceases to be complied with or satisfied pursuant to this Agreement on or an “emerging growth company,” as defined in Section 2(a) of the Act (an “Emerging Growth Company”) at any time prior to the Closing Date or later of (A) the Additional Closing Date, as the case may be, and will advise the Underwriters prior time when a prospectus relating to the Closing Date offering or sale of the Additional Closing Date, as Shares is not required by the case may be, if any statements Act to be made on behalf delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) and (B) completion of the Company in the certificate contemplated by Section 9 hereof would be inaccurate if made as of the Closing Date or the Additional Closing Date, as the case may beLock-Up Period.
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