Preparation of Pricing Supplement If any offer to purchase a Security is accepted by or on behalf of the Company, the Company will provide a pricing supplement to the Purchasing Agent and the Trustee reflecting the terms of such Security and will file such pricing supplement with the SEC in accordance with the applicable paragraph of Rule 424(b) under the 1933 Act. The Company shall use its reasonable best efforts to send such pricing supplement by email or telecopy to the Purchasing Agent and the Trustee by 3:00 p.m. (New York City time), on the applicable Trade Day. The Purchasing Agent shall use its reasonable best efforts to send such pricing supplement and the remainder of the Prospectus by email or telecopy or overnight express (for delivery by the close of business on the applicable Trade Day, but in no event later than 11:00 a.m., New York City time, on the Business Day following the applicable Trade Day) to each Agent and each Selected Dealer which made or presented the offer to purchase the applicable Security and the Trustee at the following applicable address: if to Banc of America Securities LLC, to: Banc of America Securities LLC Xxx Xxxxxx Xxxx XX0-000-00-00 Xxx Xxxx, Xxx Xxxx 00000 Attention: High Grade Transaction Management/Legal Telephone: (000) 000-0000 Telecopier: (000) 000-0000 if to Citigroup Global Markets Inc., to: Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: General Counsel Telecopier: (000) 000-0000 if to Xxxxx Fargo Advisors, LLC, to: Xxxxx Fargo Advisors, LLC Xxx Xxxxx Xxxxxxxxx Xx. Xxxxx, Xxxxxxxx 00000 Attention: Xxxxx Xxxxxxxxxx Telephone: (000) 000-0000 Telecopier: (000) 000-0000 if to RBC Capital Markets Corporation, to: RBC Capital Markets Corporation Three World Financial Center 000 Xxxxx Xxxxxx, 8th Floor New York, New York, 10281 Attention: Xxxx Xxxxxxxxx Telephone: (000) 000-0000 Telecopier: (000) 000-0000 if to UBS Securities LLC, to: UBS Securities LLC 000 Xxxxxx Xxxxxxxxx, 0xx Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000 Attention: Xxx Xxxxxx Telephone: (000) 000-0000 Telecopier: (000) 000-0000 if to TD Ameritrade, Inc., to: TD Ameritrade, Inc. 1 Harborside Financial Xxxxxx Xxxxx 0, 0xx Xxxxx Xxxxxx Xxxx, Xxx Xxxxxx 00000 Attention: Xxxxx Xxxxxxxx Telephone: (000) 000-0000 Telecopier: (000) 000-0000 if to Fifth Third Securities, Inc., to: Fifth Third Securities, Inc. 00 Xxxxxxxx Xxxxxx Xxxxxxxxxx, Xxxx 00000 Attention: Xxx Xxx Telephone: (000) 000-0000 Telecopier: (000) 000-0000 if to the Paying Agent, to: The Bank of New York Mellon x/x Xxx Xxxx xx Xxx Xxxx Xxxxxx Trust Company, N.A. 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxx, XX 00000 Attention: Corporate Unit Telephone: (000) 000-0000 Telecopier: (000) 000-0000 (000) 000-0000 For record keeping purposes, one copy of each pricing supplement, as so filed, shall also be mailed or telecopied to: Sidley Austin LLP 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxx Telephone: (000) 000-0000 Telecopier: (000) 000-0000 Each such Agent or Selected Dealer, in turn, pursuant to the terms of the Selling Agreement and the Dealers Agreement, will cause to be delivered a copy of the Prospectus (including the applicable pricing supplement), or, in lieu thereof, a notice to the effect that the sale was made pursuant to a registration statement or in a transaction in which a final prospectus would have been required to have been delivered in the absence of Rule 172 under the 1933 Act, to each purchaser of Securities from such Agent or Selected Dealer. Outdated pricing supplements and the Prospectuses to which they are attached (other than those retained for files) will be destroyed. Delivery of Confirmation and Prospectus to Purchaser by Presenting Agent: Subject to “Suspension of Solicitation; Amendment or Supplement” below, the Agents will deliver or otherwise make available the Prospectus (including the applicable pricing supplement) as herein described with respect to each Security sold by it. For each offer to purchase a Security accepted by or on behalf of the Company, the Purchasing Agent will confirm in writing with each Agent and Selected Dealer the terms of such Security, the principal amount of Securities being purchased by such Agent or Selected Dealer and other applicable details described above, delivery and payment instructions and the information required by Rule 173 under the 1933 Act, with a copy to the Company. In addition, each Agent or Selected Dealer, as the case may be, will deliver to investors purchasing the Securities the Prospectus (including the applicable pricing supplement) in relation to such Securities to any purchaser of the Securities who so requests.
Preparation of Pricing Supplements The Corporation will prepare, with respect to any Notes to be sold through or to an Agent pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by the Agents and will file such Pricing Supplement with the SEC pursuant to Rule 424(b) under the 1933 Act not later than the close of business on the second business day after the date on which such Pricing Supplement is first used.
Preparation of Agreement This Agreement shall not be construed more strongly against any party regardless of who is responsible for its preparation. The parties acknowledge each contributed and is equally responsible for its preparation.
Additional Terms applicable to the Transaction Adjustments applicable to the Transaction: Potential Adjustment Events: Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment pursuant to the Indenture to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price”, “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty to holders of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which holders of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture). Method of Adjustment: Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent, acting in good faith and in a commercially reasonable manner, shall make a corresponding adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction. Notwithstanding the foregoing and “Consequences of Merger Events / Tender Offers” below, if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture, Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner taking into account the relevant provisions of the Indenture; provided that, notwithstanding the foregoing, if any Potential Adjustment Event occurs during the Settlement Averaging Period but no adjustment was made to any Convertible Note under the Indenture because the relevant Holder (as such term is defined in the Indenture) was deemed to be a record owner of the underlying Shares on the related Conversion Date, then the Calculation Agent shall make a commercially reasonable adjustment, as determined by it, to the terms hereof in order to account for such Potential Adjustment Event. Dilution Adjustment Provisions: Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Merger Event” in Section 14.07 of the Indenture. Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section 14.04(e) of the Indenture. Consequences of Merger Events / Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment”; provided, however, that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if (x) with respect to any Merger Event or any Tender Offer, (i) (A) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (B) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation organized under the laws of the United States, any State thereof or the District of Columbia and (ii) Dealer determines at any time following the occurrence of such Merger Event or Tender Offer that (A) such Merger Event or Tender Offer has had or will have an adverse effect on Dealer’s rights and obligations under the Transaction or (B) Dealer will incur or has incurred an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) constituting a commercially reasonable hedge position in respect of the economic risk of entering into and performing its obligations with respect to the Transaction or (2) realize, recover or remit the proceeds of any transaction(s) or asset(s) constituting a commercially reasonable hedge position in respect of the economic risk of entering into and performing its obligations with respect to the Transaction or (y) a Prohibited Foreign Transaction occurs, then, in the case of either clause (x) or clause (y), Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s commercially reasonable election; provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer results in a Conversion Date occurring prior to the Free Convertibility Date (any such conversion, an “Early Conversion”).
Discussion of Differences If a difference arises between the Employer and an employee(s) or between the Employer and the Union concerning the interpretation, application, operation or any alleged violation of the Agreement, the employee(s) shall continue to work in accordance with the Agreement until the difference is settled.
Copies of any Amendments and Supplements to the Prospectus The Company agrees to furnish the Representative, without charge, during the Prospectus Delivery Period, as many copies of each of the preliminary prospectus, the Prospectus and the Disclosure Package and any amendments and supplements thereto (including any documents incorporated or deemed incorporated by reference therein) as the Representative may reasonably request.
Preparation of Proxy Statement If required by applicable Law in order to consummate the Merger, the Company shall, as soon as practicable following the Acceptance Time, prepare and file with the SEC (after providing the Buyer with a reasonable opportunity to review and comment thereon) a proxy statement relating to the Stockholders’ Meeting (the “Proxy Statement”). The Company shall respond to any comments of the SEC or its staff (after providing the Buyer with a reasonable opportunity to review and comment thereon) and shall cause the Proxy Statement to be mailed to its stockholders as promptly as practicable after the resolution of any such comments. The Company shall promptly notify the Buyer of the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply the Buyer with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement, the Agreement or the transactions contemplated by the Agreement. The Company will cause the Proxy Statement to comply in all material respects with applicable Law, including the applicable provisions of the Exchange Act and the rules and regulations thereunder. If at any time prior to the Effective Time there shall occur any event, or there shall be discovered any information, that should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be filed promptly by the Company with the SEC (after providing the Buyer with a reasonable opportunity to review and comment thereon) and disseminated by the Company to the stockholders of the Company. The Company and its counsel shall permit the Buyer, the Acquisition Sub and their counsel to participate in all communications with the SEC and its staff, including all meetings and telephone conferences, relating to the Proxy Statement, this Agreement or the transactions contemplated by the Agreement.
Amendment to Schedules Schedule 2.01 of the Credit Agreement shall be and it hereby is amended in its entirety by substituting Schedule 2.01 attached hereto.
Preparation of the Financial Statements The financial statements included or incorporated by reference in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of and at the dates indicated and the statement of operations, shareholders’ equity and cash flows for the periods specified. Such financial statements and supporting schedules included or incorporated by reference in the Registration Statement and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. The supporting schedules, if any, present fairly in all material respects in accordance with GAAP the information required to be stated therein as of the dates indicated. The pro forma financial statements and the related notes thereto included in the Registration Statement and the Prospectus, if any, present fairly the information shown therein, have been prepared in all material respects in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. Except as included or incorporated by reference therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement or the Prospectus under the Securities Act. All disclosures contained in the Registration Statement or the Prospectus, or incorporated by reference therein, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission's rules and guidelines applicable thereto.
Preparation of Reports The Servicer shall prepare and deliver such additional reports as required under this Servicing Agreement, including a copy of each Semi-Annual Servicer’s Certificate described in Section 4.01(c)(ii), the annual statements of compliance, attestation reports and other certificates described in Section 3.03 and the Annual Accountant’s Report described in Section 3.04. In addition, the Servicer shall prepare, procure, deliver and/or file, or cause to be prepared, procured, delivered or filed, any reports, attestations, exhibits, certificates or other documents required to be delivered or filed with the SEC (and/or any other Governmental Authority) by the Issuer or the Sponsor under the U.S. federal securities or other applicable laws or in accordance with the Basic Documents, including filing with the SEC, if applicable and required by applicable law, a copy or copies of (A) the Monthly Servicer’s Certificates described in Section 3.01(b)(i) (under Form 10-D or any other applicable form), (B) the Semi-Annual Servicer’s Certificates described in Section 4.01(c)(ii) (under Form 10-D or any other applicable form), (C) the annual statements of compliance, attestation reports and other certificates described in Section 3.03 and (D) the Annual Accountant’s Report (and any attestation required under Regulation AB) described in Section 3.04. In addition, the appropriate officer or officers of the Servicer shall (in its separate capacity as Servicer) sign the Sponsor’s annual report on Form 10-K (and any other applicable SEC or other reports, attestations, certifications and other documents), to the extent that the Servicer’s signature is required by, and consistent with, the U.S. federal securities laws and/or any other applicable law.
