Certain Covenants of the Issuers. The Issuers, jointly and severally, hereby agree that: (a) The Issuers will prepare the Final Memorandum in a form approved by the Initial Purchaser and will make no amendment or supplement to the Final Memorandum which shall be disapproved by the Initial Purchaser; (b) Promptly from time to time, the Issuers will take such action as the Initial Purchaser may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Initial Purchaser may request and will comply with such laws so as to permit the continuance of sales and dealing therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities; provided, that in connection therewith no Issuer shall be required to qualify as a foreign corporation, to file a general consent to service of process or subject itself to any tax in any such jurisdiction where it is not now so qualified or subject; (c) The Issuers will furnish the Initial Purchaser with as many copies of the Final Memorandum, any documents incorporated by reference therein and any amendment or supplement thereto as the Initial Purchaser may from time to time reasonably request, and if, at any time prior to the completion of the resale of the Securities by the Initial Purchaser, any event shall have occurred as a result of which the Final Memorandum as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Final Memorandum is delivered, not misleading, or, if for any other reason it shall be necessary or desirable during such same period to amend or supplement the Final Memorandum, the Company will notify the Initial Purchaser and upon the request of the Initial Purchaser will prepare, subject to Section 5(a) hereof, and furnish without charge to the Initial Purchaser and to any dealer in securities as many copies as the Initial Purchaser may from time to time reasonably request of an amended Final Memorandum or a supplement to the Final Memorandum which will correct such statement or omission or effect such compliance; (d) During the period beginning from the date hereof and continuing until the date that is ninety (90) days after the date of the Final Memorandum, no Issuer will, without the prior written consent of the Initial Purchaser, issue, offer, sell, contract to sell, pledge or otherwise dispose of, or contract to dispose of, any Securities or any other securities that are substantially similar to the Securities (other than the Securities issued at the time of purchase); (e) At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and so long as any of the Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, for the benefit of holders from time to time of the Securities, the Company will furnish at its expense, upon request, to holders and beneficial owners of Securities and prospective purchasers of Securities information satisfying the requirements of subsection (d)(4)(i) of Rule 144A; (f) The Company will use its best efforts to cause the Securities to be eligible for trading in PORTAL; (g) For so long as the Securities remain outstanding, the Company will furnish to the Initial Purchaser copies of all reports or other communications (financial or other) furnished to shareholders of the Company, and will deliver to the Initial Purchaser (i) as soon as they are available, copies of any reports and financial statements furnished to, or filed by the Company with, the Commission or any securities exchange on which the Securities or any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Initial Purchaser may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission); (h) The Company will use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Final Memorandum under the caption “Use of Proceeds”; (i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Issuers, jointly and severally, agree to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including, without limitation, (i) the fees, disbursements and expenses of the Issuers’ counsel and the Issuers’ accountants in connection with the issuance and sale of the Securities and all other fees and expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the furnishing of copies thereof to the Initial Purchaser and to dealers (including costs of mailing and shipment), (ii) all costs related to the preparation, issuance, execution, authentication and delivery of the Securities, (iii) all costs related to the transfer and delivery of the Securities to the Initial Purchaser, including any transfer or other taxes payable thereon, (iv) all expenses in connection with the qualification of the Securities for offering and sale under state laws and the cost of printing and furnishing of copies of any blue sky or legal investment memorandum to the Initial Purchaser and to dealers (including filing fees and the fees and disbursements of counsel for the Initial Purchaser in connection with such qualification and in connection with such blue sky or legal investment memorandum), (v) any fees payable to investment rating agencies with respect to the rating of the Securities, (vi) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vii) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in PORTAL or any appropriate market system, (viii) the costs and expenses of the Issuers relating to presentations or meetings undertaken in connection with the marketing of the offering of the Securities to prospective investors and the Initial Purchaser’s sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of any Issuer and any such consultants, and the cost of any aircraft chartered in connection with the road show and (ix) all other cost and expenses incident to the performance of the Company’s obligations hereunder for which provision is not otherwise made in this Section 5(i); (j) No Issuer nor any Affiliate of any Issuer will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) which would be integrated with the sale of the Securities in a manner which would require registration under the Securities Act of the Securities; (k) The Issuers will not solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; (l) During the period of two (2) years after the time of purchase, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act (“Rule 144”)) to resell any of the Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act; (m) No Issuer will take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby; and (n) Neither the Company nor any Subsidiary (or any agent thereof acting on their behalf) has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulations T, U or X of the Board of Governors of the Federal Reserve System, as in effect, or as the same may hereafter be in effect, at the time of purchase.
Appears in 1 contract
Certain Covenants of the Issuers. The Issuers, Issuers hereby jointly and severally, hereby severally agree thatwith each of the Underwriters and the Independent Underwriter:
(a) The Issuers will prepare the Final Memorandum to furnish such information as may be required and otherwise to cooperate in a form approved by the Initial Purchaser and will make no amendment or supplement to the Final Memorandum which shall be disapproved by the Initial Purchaser;
(b) Promptly from time to time, the Issuers will take such action as the Initial Purchaser may reasonably request to qualify qualifying the Securities for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Initial Purchaser you may designate and to maintain such qualifications in effect so long as you may request and will comply with such laws so as to permit the continuance of sales and dealing therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities; provided, however, that in connection therewith no Issuer shall be required to qualify as a foreign corporation, corporation or to file a general consent to the service of process or subject itself to any tax in under the laws of any such jurisdiction where it (except service of process with respect to the offering and sale of the Securities); and to promptly advise you of the receipt by any Issuer of any notification with respect to the suspension of the qualification of the Securities for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Issuers shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may request for the purposes contemplated by the Act; in case any Underwriter is not now so qualified required to deliver (whether physically or subjectthrough compliance with Rule 172 under the Act or any similar rule), in connection with the sale of the Securities, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or after the time a post-effective amendment to the Registration Statement is required to be filed with the Commission pursuant to Item 512(a) of Regulation S-K under the Act, the Issuers will prepare, at their expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) The if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Securities may be sold, the Issuers will furnish the Initial Purchaser with as many copies of the Final Memorandum, any documents incorporated by reference therein and any use their best efforts to cause such post-effective amendment or supplement thereto as the Initial Purchaser may from time such Registration Statement to time reasonably requestbe filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as possible; and the Issuers will advise you promptly and, if requested by you, will confirm such advice in writing, (i) when such post-effective amendment or such Registration Statement has become effective, and (ii) if Rule 430A (or 430B, in the event such relevant supplemental information is included by means of a prospectus) under the Act is used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Issuers agree to file in a timely manner in accordance with such Rules);
(d) if, at any time prior during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities, the Registration Statement shall cease to comply with the requirements of the Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission or the Registration Statement shall cease to be an “automatic shelf registration statement” (as defined in Rule 405 under the Act) or any of the Issuers shall have received, from the Commission, a notice, pursuant to Rule 401(g)(2), of objection to the completion use of the resale form on which the Registration Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with the Commission a new registration statement under the Act, registering the offer and sale of the Securities under the Act, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Act and shall be in a form satisfactory to you, (iii) use its best efforts to cause such new registration statement or post-effective amendment to become effective under the Act as soon as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the Prospectus; all references herein to the Registration Statement shall be deemed to include each such new registration statement or post-effective amendment, if any;
(e) to advise you promptly, confirming such advice in writing, of any request by the Initial PurchaserCommission for amendments or supplements to the Registration Statement, any event Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise you promptly of any proposal to amend or supplement the Registration Statement, any Pre-Pricing Prospectus or the Prospectus, and to provide you and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which you shall object in writing;
(f) subject to Section 4(e) hereof, to file promptly all reports and documents and any preliminary or definitive proxy or information statement required to be filed by the Issuers with the Commission in order to comply with the Exchange Act for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities; and to provide you, for your review and comment, with a copy of such reports and statements and other documents to be filed by the Issuers pursuant to Section 13, 14 or 15(d) of the Exchange Act during such period a reasonable amount of time prior to any proposed filing, and to file no such report, statement or document to which you shall have occurred as objected in writing; and to promptly notify you of such filing;
(g) to pay the fees applicable to the Registration Statement in connection with the offering of the Securities within the time required by Rule 456(b)(1)(i) under the Act (without reliance on the proviso to Rule 456(b)(1)(i) under the Act) and in compliance with Rule 456(b) and Rule 457(r) under the Act;
(h) to advise the Underwriters promptly of the happening of any event within the period during which a result prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Securities, which event could require the Final Memorandum as making of any change in the Prospectus then amended or supplemented being used so that the Prospectus would not include an untrue statement of a material fact or omit to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Final Memorandum is deliveredare made, not misleading, orand to advise the Underwriters promptly if, if for any other reason during such period, it shall be become necessary or desirable during such same period to amend or supplement the Final Memorandum, Prospectus to cause the Company will notify Prospectus to comply with the Initial Purchaser and upon the request requirements of the Initial Purchaser will prepareAct, and, in each case, during such time, subject to Section 5(a4(e) hereof, to prepare and furnish without charge furnish, at the expense of the Issuers, to the Initial Purchaser and Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any dealer in securities as many copies as the Initial Purchaser may from time such change or to time reasonably request of an amended Final Memorandum or a supplement to the Final Memorandum which will correct such statement or omission or effect such compliance;
(di) During to make generally available to its security holders, and to deliver to you, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning from the date hereof and continuing until the date that is ninety (90) days after the effective date of the Final MemorandumRegistration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period but in any case not later than March 12, no Issuer will, without the prior written consent 2008;
(j) to furnish to you five copies of the Initial PurchaserRegistration Statement, issueas initially filed with the Commission, offer, sell, contract to sell, pledge or otherwise dispose of, or contract to dispose of, any Securities or any other securities that are substantially similar to and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient copies of the Securities foregoing (other than exhibits) for distribution of a copy to each of the Securities issued at other Underwriters;
(k) to furnish to you as early as practicable prior to the time of purchase);
(e) At any time when the Company is , but not subject to Section 13 or 15(d) later than two business days prior thereto, a copy of the Exchange Act latest available unaudited interim and so long as any of the Securities are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Actmonthly consolidated financial statements, for the benefit of holders from time to time of the Securitiesif any, the Company will furnish at its expense, upon request, to holders and beneficial owners of Securities and prospective purchasers of Securities information satisfying the requirements of subsection (d)(4)(i) of Rule 144A;
(f) The Company will use its best efforts to cause the Securities to be eligible for trading in PORTAL;
(g) For so long as the Securities remain outstanding, the Company will furnish to the Initial Purchaser copies of all reports or other communications (financial or other) furnished to shareholders of the Company, and will deliver to the Initial Purchaser (i) as soon as they are available, copies of any reports and financial statements furnished to, or filed by the Company with, the Commission or any securities exchange on which the Securities or any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Initial Purchaser may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated the Subsidiaries which have been read by the Company’s independent registered public accountants, as stated in reports their letter to be furnished pursuant to its shareholders generally or to the Commission)Section 6(b) hereof;
(hl) The Company will use to apply the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Final Memorandum set forth under the caption “Use of Proceeds”” in the Prospectus Supplement;
(im) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Issuers, jointly and severally, agree to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreementcosts, includingexpenses, without limitation, fees and taxes in connection with (i) the fees, disbursements preparation and expenses filing of the Issuers’ counsel Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free Writing Prospectus and the Issuers’ accountants in connection with the issuance and sale of the Securities and all other fees and expenses in connection with the preparation of each Memorandum and all any amendments and or supplements thereto, including all printing costs associated therewith, and the printing and furnishing of copies of each thereof to the Initial Purchaser Underwriters and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Securities including any transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Securities, and all other costs related to the preparation, issuance, execution, authentication and delivery of the Securities, (iii) all costs related the producing, word processing and/or printing of this Agreement, any Agreement Among Underwriters, the Securities, any dealer agreements, any Powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the transfer Underwriters and delivery (except closing documents) to dealers (including costs of the Securities to the Initial Purchaser, including any transfer or other taxes payable thereonmailing and shipment), (iv) all expenses in connection with the qualification of the Securities for offering and sale under state or foreign laws and the cost determination of their eligibility for investment under state or foreign law (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment memorandum surveys to the Initial Purchaser Underwriters and to dealers (including filing fees and the fees and disbursements of counsel for the Initial Purchaser in connection with such qualification and in connection with such blue sky or legal investment memorandum)dealers, (v) any fees payable to investment rating agencies with respect to the rating listing of the SecuritiesSecurities on any securities exchange and any registration thereof under the Exchange Act, (vi) the costs and charges any filing for review of the Trustee public offering of the Securities by the NASD, including the legal fees and any transfer agent, registrar or depositaryfiling fees and other disbursements of counsel to the Underwriters relating to NASD matters, (vii) the all fees and expenses, if any, incurred in connection with the admission expenses of the Securities for trading in PORTAL or any appropriate market systemIndependent Underwriter, (viii) the costs and expenses of the Issuers relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Securities to prospective investors and the Initial Purchaser’s Underwriters’ sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of any Issuer of the Issuers and any such consultants, and the cost of any aircraft chartered in connection with the road show and show, (ix) all other cost the costs and charges of the Trustee and any transfer agent, registrar or depositary; (x) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading in any appropriate market system, (xi) the costs and expenses incident of qualifying the Securities for inclusion in the book-entry settlement system of DTC, Euroclear, Clearstream or any similar book-entry settlement system, (xii) the fees, disbursements and expenses of the counsel to the Issuers and the Company’s accountants in connection with the issuance and sale of the Securities and (xiii) the performance of the Company’s other of the Issuers’ obligations hereunder for which provision is not otherwise made in this Section 5(i)hereunder;
(jn) No Issuer nor any Affiliate to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(o) beginning on the date hereof and ending on, and including, the date that is 90 days after the date of any Issuer will the Prospectus Supplement (the “Lock-Up Period”), without the prior written consent of BNP, not to issue, sell, offer for sale to sell, contract or solicit offers agree to buy sell, contract to agree to sell or otherwise negotiate dispose of any debt securities issued or guaranteed by the Company or any Subsidiary and having a tenor of more than one year;
(p) prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary, or the offering of the Securities , without your prior consent;
(q) not, at any time at or after the execution of this Agreement, to, directly or indirectly, offer or sell any Securities or capital stock of the Company by means of any “prospectus” (within the meaning of the Act), or use any “prospectus” (within the meaning of the Act) in respect connection with the offer or sale of the Securities, in each case other than the Prospectus;
(r) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any action designed, or which will constitute, or has constituted, or might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security (as defined in of the Securities Act) which would be integrated with Company to facilitate the sale of the Securities in a manner which would require registration under the Securities Act or resale of the Securities;
(ks) The Issuers will not solicit any offer to buy or offer or sell effect the Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D) or in any manner involving a public offering within Guarantor Mergers promptly following the meaning of Section 4(2) consummation of the Securities ActAcquisition and to have Reliance Electric Company, Reliance Electric Technologies, LLC and REC Holding, Inc. promptly succeed to the Guarantee of the Guarantors pursuant to the Supplemental Indenture for Note Guarantees entered into no later than one business day following the Closing Date (i.e., to effect the Guarantor Successions);
(lt) During to furnish to you and the period Independent Underwriter an opinion of two (2) years after ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Underwriters and the Independent Underwriter and dated the time of purchasethe closing of the Guarantor Successions, with executed copies for each other Underwriter and the Independent Underwriter, in form satisfactory to BNP, that the Supplemental Indenture for Note Guarantees has been duly authorized by the Company will notand each Reliance Significant Subsidiary and is a legal, valid and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act (“Rule 144”)) to resell any binding agreement of the Securities which constitute “restricted securities” under Rule 144 that have been reacquired Company and each Reliance Significant Subsidiary, enforceable in accordance with its terms, except as the enforceability thereof may be limited by any bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and general principles of them except pursuant to an effective registration statement under the Securities Act;
(m) No Issuer will take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated herebyequity; and
(nu) Neither the Company nor any Subsidiary to (or any agent thereof acting on their behalfi) has taken, and none of them will take, any action that might use its best efforts to cause this Agreement or the issuance or sale of the Securities to violate Regulations T, U or X be included in the book-entry settlement system of the Board of Governors of the Federal Reserve System, as in effect, or as the same may hereafter be in effectDTC and, at the time discretion of purchaseBNP, Euroclear and Clearstream, and (ii) comply with all of its obligations set forth in the representations letter of the Company to the DTC, and any similar agreements with either of Euroclear or Clearstream, relating to such inclusion.
Appears in 1 contract