Agreements of the Underwriter. The Underwriter covenants with the Company as to the following: (a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus” (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement or any press release issued by the Company) other than a free writing prospectus that (i) is not an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) and (ii) contains only (A) information describing the preliminary terms of the Shares or their offering, (B) information permitted under Rule 134 under the Securities Act or (C) information that describes the final terms of the Shares or their offering and that is included in the final term sheet of the Company; provided that if the Underwriter uses such term sheet, the Underwriter shall notify the Company and provide a copy of such term sheet to the Company, prior to, or substantially concurrently with, the first use of such term sheet; provided further that Underwriter may use any underwriter free writing prospectus approved by the Company in advance in writing and that the Underwriter may use a term sheet substantially in the form of numbered point 2 on Schedule II without the consent of the Company. (i) It has not offered or sold and will not offer or sell any Shares to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer of transferable securities to the public in the United Kingdom within the meaning of Section 102B of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”); (ii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Shares in circumstances in which Section 21(l) of the FSMA does not apply to the Company or in which the communication is exempt under the Financial Services and Markets ▇▇▇ ▇▇▇▇ (Financial Promotions) Order 2005; and (iii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Shares in, from or otherwise involving the United Kingdom. (c) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), and on and after the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of Shares to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Shares which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, on and after the Relevant Implementation Date, make an offer of Shares to the public in that Relevant Member State at any time: (i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or (iii) in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive. (d) For the purposes of this provision, the expression an “offer of shares of Shares to the public” in relation to any Shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Shares to be offered so as to enable an investor to decide to purchase or subscribe for the Shares, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State. (e) It has not offered or sold and will not offer or sell any Shares to persons in Canada except in material compliance with the securities registration laws of Ontario, Canada. (f) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period)
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Sources: Underwriting Agreement (American Dental Partners Inc)
Agreements of the Underwriter. The Underwriter covenants with the Company as to the following:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus” (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement or any press release issued by the Company) other than a free writing prospectus that (i) is not an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) and (ii) contains only (A) information describing the preliminary terms of the Shares or their offering, (B) information permitted under Rule 134 under the Securities Act or (C) information that describes the final terms of the Shares or their offering and that is included in the final term sheet of the Company; provided that if the Underwriter uses such term sheet, the Underwriter shall notify the Company and provide a copy of such term sheet to the Company, prior to, or substantially concurrently with, the first use of such term sheet; provided further that Underwriter may use any underwriter free writing prospectus approved by the Company in advance in writing and that the Underwriter may use a term sheet substantially in the form of numbered point 2 on Schedule II without the consent of the Company.
(b) (i) It has not offered or sold and will not offer or sell any Shares to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer of transferable securities to the public in the United Kingdom within the meaning of Section 102B of the Financial Services and Markets ▇▇▇ ▇▇▇▇ (“FSMA”); (ii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Shares in circumstances in which Section 21(l) of the FSMA does not apply to the Company or in which the communication is exempt under the Financial Services and Markets ▇▇▇ ▇▇▇▇ (Financial Promotions) Order 2005; and (iii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Shares in, from or otherwise involving the United Kingdom.
(c) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), and on and after the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not made and will not make an offer of Shares to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Shares which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, on and after the Relevant Implementation Date, make an offer of Shares to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive.
(d) For the purposes of this provision, the expression an “offer of shares of Shares to the public” in relation to any Shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Shares to be offered so as to enable an investor to decide to purchase or subscribe for the Shares, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(e) It has not offered or sold and will not offer or sell any Shares to persons in Canada except in material compliance with the securities registration laws of Ontario, Canada.
(f) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period)
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