Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows: (a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing. (b) The Offerors shall notify you immediately, and confirm such notice in writing: (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed; (ii) of the receipt of any comments or requests from the Commission; (iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible. (c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto. (d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction. (f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated
Appears in 2 contracts
Sources: Underwriting Agreement (1st Source Capital Trust Ii), Underwriting Agreement (1st Source Capital Trust Ii)
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriters immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
Commission or notice from the Commission that it will not review the Registration Statement (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any the Preferred Securities or capital stock of the Designated Preferred Securities Company, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriters shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, Underwriters as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-2 under the 1933 Act) and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto▇▇ ▇▇▇ ▇nderwriters may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriters, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriters may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriters, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriters may reasonably request.
(e) The Company will comply to the best of their ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a Prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriters or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriters, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriters may reasonably request designate and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; provided, howeverPROVIDED HOWEVER, that the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available to their security holders in (within the manner contemplated by meaning of Rule 158 of the 1933 Act Regulations Regulations) to its securityholders, the Underwriters and furnish to you the Securityholders as soon as practicable, but in any event not later than 16 months 90 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures. The Company and the Bank will use the net proceeds received from the sale of the Junior Subordinated Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds".
(i) The Offerors, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriters, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports, proxy statements, and information as shall be furnished by the Company to its shareholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all documents and notices required by the Nasdaq Stock Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay for the legal fees and related filing fees of counsel to the Underwriters to prepare one or more "blue sky" surveys (each, a consolidated"Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriters.
(m) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to each of the Underwriters and counsel to the Underwriters, a hard-bound copy of the documents used in connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K promulagated under the 1933 Act, except as contemplated by the Prospectus.
(p) During a period of forty-five days from the date of the Prospectus, neither the Trust nor the Company will, without the prior written consent of the Underwriters, directly or indirectly, offer, sell, offer to sell, or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or other securities of the Trust or the Company which are substantially similar to the Preferred Securities, including any guarantee of such securities, except with respect to any exchange of preferred securities issued by BankUnited Capital for registered and substantially similar preferred securities of BankUnited Capital. The foregoing sentence shall not apply to any of the Preferred Securities to be sold hereunder.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly --------------------------------- and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, then the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you the Representative immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and and, if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Representative shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you the Representative or counsel for the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to youthe Representative, such number of copies as you the Representative may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you the Representative and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to youthe Representative, such number of copies as you the Representative may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you the Representative and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you the Representative and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you the Representative may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you the Representative immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you the Representative as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representative copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with or any other national securities exchange or self-regulatory organization, and such other documents, reports and information concerning the business and financial condition of the Offerors as the Representative may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representative.
(i) For a period of 30 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities without the Representative's prior written consent.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become listed on the American Stock Exchange, Inc., or in lieu thereof another national securities exchange or self-regulatory organization, and to remain so listed for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representative, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the American Stock Exchange, Inc. or another organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' Option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings (except for repurchase agreements in the ordinary course of business consistent with past practice) of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to (i) cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities or (ii) otherwise violate the Commission's Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(m) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without the Representative's prior written consent.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement to become effective and will notify the Underwriters immediately, and confirm the notice in writing, (i) when the Registration Statement, or any amendments post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Offerors will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement or, if the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriters shall not previously have been advised and furnished a copy, or to which the Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriters as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the ▇▇▇▇ ▇▇▇) and signed copies of all consents and certificates of experts as the Underwriters may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the Underwriters, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriters may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriters, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriters during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriters may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Preferred Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Preferred Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not effective include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of execution of this Agreementeither such counsel, at any such time to become effective as promptly as possible. If amend the Registration Statement has become or becomes amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the Underwriters, to qualify the Preferred Securities and the Debentures for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; PROVIDED, HOWEVER, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of Rule 158 of the 1933 Act Regulations ("Rule 158") to the holders of the Preferred Securities and the Underwriters as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Debentures from the Company. The Company and the Bank will use the net proceeds received by them from the sale of the Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Preferred Securities, will file promptly all documents required to be filed with the Commission pursuant to Rule 430A Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of three years after the Closing Time, the Company will furnish to the Underwriters copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission and such other documents, reports, proxy statements and information has as shall be furnished by the Company to its stockholders generally which are not filed via the Commission's ▇▇▇▇▇ system.
(k) The Company will provide to the holders of the Preferred Securities annual reports containing financial statements audited by the Company's independent auditors and, provided the Company continues to be subject to the Securities Exchange Act of 1934, upon written request, the Company's annual reports on Form 10-K.
(l) The Offerors will file with the NASD all documents and notices required by the NASD of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(m) The Company shall pay the legal fees and related filing fees of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood, counsel to the Underwriters, to prepare one or more "blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriters.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance on upon Rule 430A, then, then the Offerors will prepare prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) ), copies of the an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the an amended Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filingomitted.
(bo) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to the Underwriters and counsel to the Underwriters copies of the documents used in connection with the issuance of the Preferred Securities.
(p) The Offerors shall notify you immediatelywill not, and confirm such notice prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in writing:
(i) when the Registration Statementordinary course of business, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when transaction with a prospectus related party which is required to be delivered under disclosed in the 1933 Act, the Offerors shall comply Prospectus pursuant to the best Item 404 of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion Regulation S-K of the distribution Commission, except as contemplated by the Prospectus.
(q) During a period of thirty (30) days from the date of the Designated Preferred Securities as contemplated herein and in Prospectus, neither the Trust Agreement and nor the Prospectus. The Offerors shall not file any amendment to Company will, without the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion written consent of the Company's counsel Underwriters, directly or indirectly, offer, sell, offer to amend sell, or supplement the Registration Statement or the Prospectus in connection with the distribution otherwise dispose of the Designated any Preferred Securities, any other beneficial interests in the Offerors shall forthwith amend assets of the Trust, or supplement any preferred securities or other securities of the Registration Statement Trust or the ProspectusCompany that are substantially similar to the Preferred Securities, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does including any guarantee of such securities. The foregoing sentence shall not reasonably object), and furnishing apply to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may to be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionsold hereunder.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated
Appears in 1 contract
Sources: Underwriting Agreement (Seacoast Financial Services Corp)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representative copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or The Nasdaq Stock Market's National Market and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representative may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representative.
(i) For a period of 180 days from the date hereof, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without your prior written consent.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on The Nasdaq Stock Market's National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representative, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on The Nasdaq Stock Market's National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(i) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(k) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representative, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Offerors' securities.
(l) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(m) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior written consent.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement to become effective and will notify the Underwriters immediately, and confirm the notice in writing, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Offerors will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will not file with the Commission the Prospectus or the amendment referred to in Section 3(a) hereof, any amendment or supplement to the Prospectus or any amendment to the Registration Statement unless the Underwriters have received a reasonable period of time to review any such proposed amendment or supplement and consented to the filing thereof and will use its best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon the reasonable request of the Underwriters or counsel for the Underwriters, the Company will promptly prepare and file with the Commission, in accordance with the rules and regulations of the Commission, any amendments thereto, if not effective at to the time Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of execution of this Agreement, the Preferred Securities by the Underwriters and will use its best efforts to become cause any such amendment to the Registration Statement to be declared effective as promptly as possible. If required, the Company will file any amendment or supplement to the Prospectus with the Commission in the manner and within the time period required by Rule 424(b). The Company will advise the Underwriters, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereto has become been filed or declared effective or the Prospectus or any amendment or supplement thereto has been filed and will provide evidence to the Underwriters of each such filing or effectiveness.
(c) The Offerors will not at any time file or make any amendment to the Registration Statement or, if the Offerors have elected to rely upon Rule 430A, any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriters shall not previously have been advised and furnished a copy, or to which the Underwriters or counsel for the Underwriters shall reasonably object.
(d) The Offerors have furnished or will furnish to the Underwriters as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act) and signed copies of all consents and certificates of experts as the Underwriters may reasonably request.
(e) The Offerors will deliver or cause to be delivered to the Underwriters, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriters may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriters, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriters during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriters may reasonably request.
(f) The Offerors will endeavor, in cooperation with the Underwriters, to qualify the Preferred Securities and Debentures for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriter may designate (with the prior approval of the Offerors), and will maintain such qualifications in effect for as long as may be required for the distribution of the Preferred Securities, except that neither of the Offerors shall be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state or other jurisdiction. The Offerors will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
(g) The Company will comply with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Preferred Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Preferred Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements and will furnish without charge to each of the Underwriters and dealers as many copies of such amended and supplemented Prospectus as may from time to time be reasonably requested.
(h) The Company will make generally available (within the meaning of Rule 158 of the 1933 Act Regulations ("Rule 158")) to the holders of the Preferred Securities and the Underwriters as soon as practicable, but not later than 90 days after the close of the period covered thereby if such quarter is the last fiscal quarter of the Company's fiscal year and in all other cases not later than 45 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(i) The Trust shall apply the entire proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Debentures from the Company. The Company and the Bank will use the net proceeds received by them from the sale of the Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) The Offerors, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Preferred Securities, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(k) For a period of five years after the Closing Time, the Company will furnish to the Underwriters copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission and such other documents, reports, proxy statements and communication (financial or otherwise) as shall be furnished by the Company to its shareholders generally.
(l) The Company will provide to the holders of the Preferred Securities annual reports containing financial statements audited by the Company's independent auditors and, provided the Company continues to be subject to the 1934 Act, upon written request, the Company's annual reports on Form 10-K.
(m) The Offerors will take such action as may be necessary to comply with the rules and regulations of the Nasdaq National Market in respect of the Offering of the Preferred Securities.
(n) The Company shall pay (as provided in Section 4(a)(vi)) the legal fees and related filing fees of Drinker Biddle & Reath LLP, counsel to ▇▇▇ Und▇▇▇▇▇ters, to prepare one or more "blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the Offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriters.
(o) If, at the time the Registration Statement becomes effective, any information has shall have been omitted therefrom in reliance on upon Rule 430A, then, then the Offerors will prepare prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) ), copies of the an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the an amended Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filingomitted.
(bp) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to the Underwriters and counsel to the Underwriters copies of the documents used in connection with the issuance of the Preferred Securities.
(q) The Offerors shall notify you immediatelywill not, and confirm such notice prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in writing:
(i) when the Registration Statementordinary course of business, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when transaction with a prospectus related party which is required to be delivered under disclosed in the 1933 ActProspectus pursuant to Item 404 of Regulation S-K of the Commission, except as contemplated by the Offerors Prospectus.
(r) Neither the Company nor the Trust shall comply enter into any contractual agreement with respect to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in except for the arrangements with the Underwriters.
(s) During a period of thirty (30) days from the date of the Prospectus, neither the Trust Agreement and nor the Prospectus. The Offerors shall not file any amendment to Company will, without the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion written consent of the Company's counsel Underwriters, (i) other than any Preferred Securities to amend be sold hereunder, directly or supplement the Registration Statement indirectly, offer, sell, offer to sell, or the Prospectus in connection with the distribution otherwise dispose of the Designated any Preferred Securities, any other beneficial interests in the Offerors shall forthwith amend assets of the Trust, or supplement any preferred securities or other securities of the Registration Statement Trust or the ProspectusCompany that are substantially similar to the Preferred Securities, as the case may beincluding any guarantee of such securities or (ii) enter into any swap or other agreement or any transaction that transfers, by preparing and filing with the Commission (provided the Underwriters in whole or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements toin part, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result economic consequences of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light ownership of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities whether any such swap or blue sky laws other agreement is to be settled by delivery of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution shares of the Designated Preferred Securities; provided, howeverother securities, that the Offerors shall not be required to qualify to do business as a foreign corporation cash or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionotherwise.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, then the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-post- effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filingomitted.
(b) The Offerors shall notify you the Underwriter immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and and, if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the UnderwritersUnderwriter, from time to time without charge, as soon as available, as many copies as the Underwriters Underwriter may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Underwriter shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you the Underwriter or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters Underwriter or counsel for the Underwriters Underwriter does not reasonably object), and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you the Underwriter and counsel for the UnderwritersUnderwriter). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance reasonably satisfactory to you the Underwriter and counsel for the UnderwritersUnderwriter) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you the Underwriter and counsel for the Underwriters Underwriter in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions within the United States of America as you the Underwriter may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you the Underwriter immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you the Underwriter as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Underwriter copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with or any other national securities exchange or self-regulatory organization, and such other documents, reports and information concerning the business and financial condition of the Offerors as the Underwriter may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Underwriter.
(i) For a period of 90 days from the Effective Date, the Offerors shall not, without the Underwriter's prior written consent, directly or indirectly offer, sell, contract to sell or otherwise dispose of Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become listed on the American Stock Exchange, Inc., or in lieu thereof another national securities exchange or self-regulatory organization, and to remain so listed for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Underwriter, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the American Stock Exchange, Inc. or another organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriter's Option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriter shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors, Bancorp nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors, Bancorp or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings (except for repurchase agreements in the ordinary course of business consistent with past practice) of the Offerors and the Company Subsidiaries, or Bancorp and the Bancorp Subsidiaries, as the case may be, on a consolidated basis.
(l) Neither Offerors nor Bancorp shall take, directly or indirectly, any action designed to result in or which has constituted or which would reasonably be expected to (i) cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities or (ii) otherwise violate the Commission's Regulation M.
(m) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, Bancorp, the Subsidiaries or the offering of the Designated Preferred Securities without the Underwriter's prior written consent.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws laws, if required, of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or self-regulatory organization, and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives.
(i) For a period of 30 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become listed on the Nasdaq National Market or in lieu thereof on a national stock exchange, and to remain so listed for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use reasonable efforts to have the Debentures promptly listed on the Nasdaq National Market or other exchange on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor the Bank shall take any action (or refrain from taking any action) which will result in the Offerors or the Bank incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Bank on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to either of the Offerors, the Bank or the offering of the Designated Preferred Securities (the "Offering") without your prior written consent.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, then the Offerors will shall prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will shall provide evidence satisfactory to the Representative Underwriter of such timely filing.
(b) The Offerors shall notify you the Underwriter immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and and, if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the UnderwritersUnderwriter, from time to time without charge, as soon as available, as many copies as the Underwriters Underwriter may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 ActAct in connection with sales by the Underwriter or any dealer, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Underwriter shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter or its counsel shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters Underwriter or its counsel for the Underwriters does not reasonably object), and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you the Underwriter and counsel for the Underwritersits counsel). If If, at any time when a prospectus relating to the Preferred Securities is required to be delivered under the 1933 Act or the 1933 Act Regulations in connection with sales by the Underwriter or any dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at its cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance reasonably satisfactory to you the Underwriter and counsel for the Underwritersits counsel) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you the Underwriter and counsel for the Underwriters Underwriter in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions within the United States of America as you the Underwriter may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will shall notify you the Underwriter immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you the Underwriter as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Regulations.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For 5 years from the Effective Date, the Offerors shall furnish to the Underwriter copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities or its common stock as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with or any national securities exchange or self-regulatory organization, and such other documents, reports and information concerning the business and financial condition of the Offerors as the Underwriter may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Underwriter.
(i) For a period of 180 days from the Effective Date, the Offerors shall not, without the Underwriter's prior written consent, directly or indirectly offer, sell, contract to sell or otherwise dispose of Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities.
(j) The Offerors shall, as provided in the Trust Agreement and the Indenture, use their best efforts to cause the Designated Preferred Securities to become listed on the American Stock Exchange LLC or in lieu thereof another national securities exchange. If the Designated Preferred Securities are exchanged for Debentures, the Company shall, as provided in the Trust Agreement and the Indenture, use its best efforts to have the Debentures promptly listed on the American Stock Exchange LLC or another organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriter's Option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriter shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Company nor any of the Subsidiaries shall take any action (or refrain from taking any action) which shall result in the Company or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there shall not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings (except for repurchase agreements in the ordinary course of business consistent with past practice) of the Company and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to (i) cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities or (ii) otherwise violate the Commission's Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(m) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors shall not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, the Subsidiaries or the offering of the Designated Preferred Securities without the Underwriter's prior written consent.
(n) The Offerors shall comply with all registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
(o) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Underwriter, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, any prepayment or notice of prepayment) of any of the Offerors' securities, other than the redemption of the Preferred Securities pursuant to their terms and as contemplated in the Prospectus.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and and, if requested by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; providedPROVIDED, howeverHOWEVER, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or any threat thereof of which they are aware in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner, and only in the manner, specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all annual and quarterly reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or all reports and financial statements filed with or furnished to any national securities exchange or the Nasdaq Stock Market or other self-regulatory organization.
(j) Without the prior written consent of the Representatives, for a period of 90 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities (other than the issuance to and purchase by the Company of the Common Securities of the Trust), including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, except for the registration of the Designated Preferred Securities and the sales to the Underwriters pursuant to this Agreement.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on a national securities exchange or include them in a comparable automated quotation system on or in which the Designated Preferred Securities are then listed or included and to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities.
(n) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities without your prior consent, which consent shall not be unreasonably withheld.
(p) The Offerors shall comply with all registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
Appears in 1 contract
Sources: Underwriting Agreement (Mb Financial Capital Trust I)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange, the Nasdaq National Market or other self-regulatory organization, and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives.
(i) For a period of 30 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become listed on the Nasdaq National Market or in lieu thereof the New York Stock Exchange or another national securities exchange, and to remain so listed for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or the New York Stock Exchange or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior written consent.
(o) The Offerors shall inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if either of the Offerors or any of the Subsidiaries commences engaging in business with the government of Cuba or with a person or affiliate located in Cuba, with such information to be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives.
(j) For a period of 90 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities (other than the Common Securities of the Trust to be issued to the Company), including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, except for the registration of the Designated Preferred Securities and the sales to the Underwriters pursuant to this Agreement, without the prior written consent of the Representatives.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities; provided, however, that this shall not apply to repurchases by the Company of its common stock.
(n) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities without your prior consent.
(p) The Offerors shall comply with all registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriter of such timely filing.
(b) The Offerors shall notify you the Underwriter immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the UnderwritersUnderwriter, from time to time without charge, as soon as available, as many copies as the Underwriters Underwriter may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each any Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Underwriter shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter or the Underwriter's counsel shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedOfferors' reasonable
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriter immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause such order obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to be withdrawn the Registration Statement or, if the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or lifted as soon as possiblesupplement to the Prospectus of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, Underwriter as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents incorporated therein or filed therewith, (iii) therewith and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) as the Prospectus, and all amendments and supplements theretoUnderwriter may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for as supplemented or amended) as the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you Underwriter may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionrequest.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated
Appears in 1 contract
Sources: Underwriting Agreement (Metropolitan Capital Trust I)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriter of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the UnderwritersUnderwriter, from time to time without charge, as soon as available, as many copies as the Underwriters Underwriter may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for to the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters you or counsel for to the Underwriters Underwriter does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for to the UnderwritersUnderwriter). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for to the UnderwritersUnderwriter) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for to the Underwriters Underwriter in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoingforegoing (except with respect to the offering and sale of the Designated Preferred Securities). The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations Regulations, and furnish to you you, as soon as practicable, but in any event not later than 16 15 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Underwriter copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Underwriter may reasonably request, other than such documents, reports and information which the Offerors have a legal obligation not to reveal to the Underwriter.
(i) For a period of 180 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Underwriter.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Underwriter, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriter's option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriter shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Underwriter, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Preferred Securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in a violation of the Commission's Regulation M and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior written consent.
(o) The Offerors will use their best efforts to satisfy or cause to be satisfied the conditions to the obligations of the Underwriter in Section 6 hereof.
(p) The Trust shall comply in all respects with the undertakings given by the Trust in connection with the qualification or registration of the Designated Preferred Securities for offering and sale under the Blue Sky Laws.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any the Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred SecuritiesSecurities and the Shares, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities and the Shares for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred SecuritiesSecurities and the Shares; provided, however, that the -------- ------- Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities and the Shares have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities and the Shares or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representative copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities and the Shares as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq Stock Market or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representative may reasonably request, other than such documents, reports and information for which the Offerors have the legal obligation not to reveal to the Representative.
(i) For a period of 90 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, other than securities relating to IFC Capital Trust II covered by the Registration Statement, and (ii) for a period of 90 days from the Effective Date, the Offerors shall not, without the prior written consent of the Representative, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any shares of Common Stock or securities convertible into or exchangeable for Common Stock or warrants or other rights to purchase Common Stock or permit the registration under the 1933 Act of any shares of Common Stock, except for (1) the registration of the Designated Preferred Securities and the Shares and the sales to the Underwriters pursuant to this Agreement, (2) issuances of Common Stock upon the exercise of outstanding options, warrants and debentures or upon the conversion of shares of preferred stock outstanding as of the date hereof, (3) grants of options or other rights to purchase Common Stock and issuances of shares of Common Stock under employee benefit plans and other compensatory programs in existence on the date hereof and registrations thereof on Form S-8, (4) issuances of Preferred Stock pursuant to the ▇▇▇▇▇ Union Bank Business Development Board Program as described in the Prospectus and possible issuances of Common Stock upon the conversion thereof, [and (4) __________.]
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities and the Shares to become quoted on the Nasdaq Stock Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representative, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on the Nasdaq Stock Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representative, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities, except for any purchases of shares of Common Stock pursuant to a publicly announced stock buy-back program.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to (i) cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities or the Shares or (ii) otherwise violate the Commission's Regulation M and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities or the Shares (the "Offering") which you shall not previously have been provided a copy a reasonable time prior to the release thereof or provided reasonable notice thereof and you shall not have reasonably objected thereto.
(o) The Offerors shall use best efforts to comply with all applicable registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
(p) At any time that the number of authorized but unissued shares of Common Stock (or shares of Common Stock held in treasury and available for such purpose) shall be less than the aggregate number of shares of Common Stock into which the Preferred Securities then outstanding shall be convertible, the Company shall take such action as is necessary to increase the number of shares of Common Stock which the Company is authorized to issue so that the Company will have a sufficient number of shares of Common Stock available for conversion of the Capital Securities then outstanding.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors Offerors, jointly and --------------------------------- severally severally, covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, then the Offerors will prepare and file file, in accordance with Rule 430A and Rule 424(b) copies of ), the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriters of such timely filing.
(b) The Offerors shall notify you immediately, and and, if requested by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which unless you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or and to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedhave
Appears in 1 contract
Sources: Underwriting Agreement (Ctbi Preferred Capital Trust Ii)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any the Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the -------- ------- Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representative copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq Stock Market or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representative may reasonably request, other than such documents, reports and information for which the Offerors have the legal obligation not to reveal to the Representative.
(i) For a period of 30 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities (other than pursuant to this Agreement), any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without your prior written consent.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq Stock Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representative, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on the Nasdaq Stock Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representative, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities, except for any purchases of shares of the Company's common stock pursuant to a publicly announced stock buy-back program.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to (i) cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities or (ii) otherwise violate the Commission's Regulation M and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") which you shall not previously have been provided a copy a reasonable time prior to the release thereof or provided reasonable notice thereof and you shall not have reasonably objected thereto.
(o) The Offerors shall use best efforts to comply with all applicable registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters each Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriters immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
Commission (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities or capital stock, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriters shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, you as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act) and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements theretoas you may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to each Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as such Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to each Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as such Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriters or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriters, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriters may reasonably request designate and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; providedPROVIDED, howeverHOWEVER, that the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available (within the meaning of Rule 158) to their its security holders holders, the Underwriters and the Securityholders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, Regulations) covering a period of at least 12 months beginning after the effective date of the Registration Statement but in any event not later than 16 months the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the sale by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures. The Company and the Bank will use the net proceeds received by them from the sale of the Junior Subordinated Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds".
(i) The Offerors, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Effective DateClosing Time, the Company will furnish to the Underwriters, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports, Proxy Statements, and information as shall be furnished by the Company to its stockholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all documents and notices required by the Nasdaq Stock Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay for the legal fees and related filing fees to the counsel to the Underwriters to prepare one or more "blue sky" surveys (each, a consolidated"Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriters.
(m) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to each of the Underwriters and counsel to the Underwriters, a hard-bound copy of the documents used in connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K under the Securities Act, except as contemplated by the Prospectus.
(p) During a period of five days from the date of the Prospectus, neither the Trust nor the Company will, without the prior written consent of the Underwriters, directly or indirectly, offer, sell, offer to sell, or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or other securities of the Trust or the Company which are substantially similar to the Preferred Securities, including any guarantee of such securities. The foregoing sentence shall not apply to any of the Preferred Securities to be sold hereunder.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriter of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities Shares for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors Company shall furnish to the Underwritersyou, from time to time without charge, as soon as available, as many copies as the Underwriters you may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities Shares as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall reasonably object. If it is necessary, in the Company's your reasonable opinion or in the reasonable opinion of the Company's your counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred SecuritiesShares, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object)Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters)your counsel. If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and your counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and your counsel for the Underwriters in order to qualify the Designated Preferred Securities Shares for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred SecuritiesShares; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities Shares have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities Shares or threat thereof in any jurisdiction.
(f) The Offerors Company shall make generally available to their its security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Company conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the net proceeds from the sale of the Shares to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Company shall furnish to the Underwriter copies of all reports and communications (financial or otherwise) furnished by the Company to the holders of the Shares as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market and such other documents, reports and information concerning the business and financial condition of the Company as the Underwriter may reasonably request, other than such documents, reports and information for which the Company has the legal obligation not to reveal to the Underwriter.
(i) For a period of 180 days from the date hereof, the Company shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any shares of the common stock securities convertible into, exercisable or exchangeable for, or that are the economic or voting equivalent of, any such shares of common stock, or announce the offering of, or register with the Commission, any shares of common stock or such other securities, without your prior written consent.
(j) For a period of 180 days from the date hereof, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any shares of Shares, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Shares, including any guarantee of any such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without your prior written consent.
(k) The Offerors shall use their best efforts to cause the Shares to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Underwriter, provided this shall not prevent the Company from redeeming the Shares pursuant to the terms of the Certificate of Designations. If the Shares are exchanged for Debentures, the Company will use its best efforts to have the Debentures listed on the exchange or other organization on which the Preferred securities are then listed, and to have the Debentures registered under the Exchange Act.
(l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriter's option to purchase the Option Shares shall expire or (ii) the day following the Option Closing Date with respect to any Option Shares that the Underwriter shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor the Banks shall take any action (or refrain from taking any action) which will result in the Offerors or the Banks incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Banks on a consolidated basis.
(m) The Company shall not, for a period of 180 days after the date hereof, without the prior written consent of the Underwriter, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Company's securities, provided that the foregoing shall not prevent an employee from delivering the Company's securities in payment of the exercise price of options issued under the Company's Incentive Share Grant Plan and Employee Stock Option Plan.
(n) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares and the Company is not aware of any such action taken or to be taken by any affiliate of the Company.
(o) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, the Banks or the offering of the Shares (the "Offering") without your prior written consent which will not be unreasonably withheld.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for to the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters you or counsel for to the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for to the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for to the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for to the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market.
(i) For a period of 180 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor the Bank shall take any action (or refrain from taking any action) which will result in the Offerors or the Bank incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Bank on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Designated Preferred Securities, except for a redemption following a Tax Event, Capital Treatment Event or Investment Company Event as described in the Registration Statement.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in a violation of the Commission's Regulation M and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Bank or the offering of the Designated Preferred Securities (the "Offering") without your prior consent.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly --------------------------------- and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of ), the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and and, if requested by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-post- effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does do not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for use their best efforts to permit the Underwriters in order to qualify the Designated Preferred Securities to be eligible for offering clearance and sale under settlement through the securities or blue sky laws facilities of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionDTC.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with the Nasdaq National Market, any national securities exchange, or other self-regulatory organization, and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors have the legal obligation not to reveal to the Representatives.
(i) Until the earlier of the Option Closing Date or the expiration of the Underwriters' Option, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become included in the Nasdaq National Market or in lieu thereof to be listed on the New York Stock Exchange or another national securities exchange, and to remain so included or listed for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly included in the Nasdaq National Market or listed on the New York Stock Exchange or other organization on which the Designated Preferred Securities are then included or listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior consent.
(o) The Offerors shall inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if either of the Offerors or any of the Subsidiaries commences engaging in business with the government of Cuba or with a person or affiliate located in Cuba, with such information to be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Sources: Underwriting Agreement (First Preferred Capital Trust Ii)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- ------------------------------------ severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriter of such timely filing.
(b) The Offerors shall notify you the Underwriter immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the UnderwritersUnderwriter, from time to time without charge, as soon as available, as many copies as the Underwriters Underwriter may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Underwriter shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you the Underwriter or counsel for to the Underwriter shall reasonably object. If it is necessary, in the CompanyUnderwriter's reasonable opinion or in the reasonable opinion of counsel to the Company's counsel Underwriter to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you the Underwriter and counsel for to the UnderwritersUnderwriter). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you the Underwriter and counsel for to the UnderwritersUnderwriter) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you the Underwriter and counsel for to the Underwriters Underwriter in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you the Underwriter may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you the Underwriter immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you the Underwriter as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Underwriter copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Underwriter may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Underwriter.
(i) For a period of 180 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the Underwriter's prior written consent.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Underwriter, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriter's option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriter shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any liability or obligation, direct or contingent, or enter into any transaction, except in the ordinary course of business, and there will not be any change in the financial position, capital stock, or any increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the Underwriter's prior written consent, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities; provided however, that the foregoing shall not prevent ---------------- an employee from delivering the Company's securities in payment of the exercise price of options issued under the Company's 1994 Stock Option Plan.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without the Underwriter's prior written consent, which will not be unreasonably withheld.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriter of such timely filing.
(b) The Offerors shall notify you the Underwriter immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the UnderwritersUnderwriter, from time to time without charge, as soon as available, as many copies as the Underwriters Underwriter may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Underwriter shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter or the Underwriter's counsel shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters Underwriter or Underwriter's counsel for the Underwriters does not reasonably object), and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you the Underwriter and counsel for the UnderwritersUnderwriter's counsel). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you the Underwriter and counsel for the UnderwritersUnderwriter's counsel) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you the Underwriter and the Underwriter's counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you the Underwriter may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you the Underwriter immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you the Underwriter as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Underwriter copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market as the Underwriter may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Underwriter.
(i) For a period of 180 days from the date hereof, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the Underwriter's prior written consent.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Underwriter, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriter's option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriter shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor the Banks shall take any action (or refrain from taking any action) which will result in the Offerors or the Banks incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Banks on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Underwriter, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Offerors' securities, provided that the foregoing shall not prevent (i) the Company from redeeming its common stock from time to time or (ii) an employee or director from delivering the Company's securities in payment of the exercise price of options issued under the Company's Incentive Share Grant Plan and Stock Option Plans.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Banks or the offering of the Designated Preferred Securities (the "Offering") without the Underwriter's prior written consent which will not be unreasonably withheld.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriters of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for to the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters you or counsel for to the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for to the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for to the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for to the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations Regulations, and furnish to you you, as soon as practicable, but in any event not later than 16 15 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Underwriters copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Underwriters may reasonably request, other than such documents, reports and information which the Offerors have a legal obligation not to reveal to the Underwriters.
(i) For a period of 180 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Underwriters.
(j) If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Underwriters, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Preferred Securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in a violation of the Commission's Regulation M and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior written consent, which consent will not be unreasonably withheld.
(o) The Offerors will use their best efforts to satisfy or cause to be satisfied the conditions to the obligations of the Underwriters in Section 6 hereof.
(p) The Trust shall comply in all respects with the undertakings given by the Trust in connection with the qualification or registration of the Designated Preferred Securities for offering and sale under the Blue Sky Laws.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors ------------------------------------ jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedregistration
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriter immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities or capital stock, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriter shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, Underwriter as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-2 under the 1933 Act) and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) as the Prospectus, and all amendments and supplements theretoUnderwriter may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriter, to qualify the Designated Company Shares, Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriter may reasonably request designate and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; provided, however, that the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Company Shares and Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available (within the meaning of Rule 158) to their security holders its securityholders, the Underwriter and the Securityholders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, Regulations) covering a period of at least 12 months beginning after the effective date of the Registration Statement but in any event not later than 16 the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Trust Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures. The Company and the Bank will use the net proceeds received by them from the sale of the Junior Subordinated Debentures in the mariner specified in the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, such other documents, reports, Proxy Statements and information as shall be furnished by the Company to its stockholders generally, every material press release in respect to the Company or its affairs which was released or prepared by the Company, and any additional information of a public nature concerning the Company or its business that the Underwriter may reasonably request.
(k) The Offerors will file with The Nasdaq Stock Market all documents and notices required by The Nasdaq Stock Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by The Nasdaq Stock Market.
(l) The Company shall pay the legal fees and related filing fees of counsel to the Company to prepare one or more "blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering of the Company Shares and the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(m) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of the Company Shares and the Preferred Securities, prepare and distribute to the Underwriter and counsel to the Underwriter, copies of the documents used in connection with the issuance of such Securities.
(o) The Offerors will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, except as contemplated by the Prospectus.
(p) During a period of 180 days from the date of the Prospectus, neither the Trust nor the Company will, without the prior written consent of the Underwriter, directly or indirectly, offer, sell, offer to sell, or otherwise dispose of any Common Stock or Preferred Securities, any other beneficial interests in the assets of the Trust or any preferred securities or other securities of the Trust or the Company that are substantially similar to the Preferred Securities or the Common Stock, including any guarantee of such securities, or sell or grant options, rights, or warrants with respect to any shares of Common Stock (other than the grant of options pursuant to option plans or agreements existing on the date hereof). The foregoing sentence shall not apply to any of the Company Shares or Preferred Securities to be sold hereunder.
(q) The Company will maintain a transfer agent and, if required by law or the rules of The Nasdaq Stock Market or any national securities exchange on which the Common Stock and the Preferred Securities are listed, a registrar (which, if permitted by applicable laws and rules, may be the same entity as the transfer agent) for its Common Stock and Preferred Securities,
(r) The Company shall deliver the requisite notice of issuance to the NASD and shall take all necessary and appropriate action within its power to cause or permit trading and listing of the Common Stock and the Preferred Securities on the OTC Bulletin Board for a period of at least 36 months after the Effective Datedate of this Agreement, a consolidatedexcept during such period(s) in which the Company's Common Stock and/or Preferred Securities shall be listed for trading on any of the: (A) Nasdaq Small Market;
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediatelypromptly, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) non-original executed copies of the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any the Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158; provided, however, that the Offerors will be deemed to have complied with their obligation to furnish such consolidated earnings statement to you if such statement is electronically transmitted to the Commission pursuant to its EDG▇▇ ▇▇stem.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives; provided, however, that the Offerors will be deemed to have complied with their obligation to furnish such reports and communications to the Representatives if such information is electronically transmitted to the Commission pursuant to its EDG▇▇ ▇▇stem.
(j) For a period of 90 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, except for the registration of the Designated Preferred Securities and the sales to the Underwriters pursuant to this Agreement, without the prior written consent of the Representatives.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on The Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted, provided this shall not prevent the Company from redeeming the
Appears in 1 contract
Certain Covenants of the Offerors. The In further consideration of the agreements of the Underwriters herein contained, each of the Offerors covenants and agrees, jointly and --------------------------------- severally covenant with the Underwriters severally, as follows:
(a) The Offerors shall use their best efforts Offerors, on or prior to cause the Time of Purchase, will deliver to the Underwriters conformed copies of the Registration Statement as originally filed and any of all amendments thereto, if not effective at the time of execution of this Agreementheretofore or hereafter made, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a including any post-effective amendment to the Registration Statement (in each case including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediatelyexhibits filed therewith, and including unsigned copies of each consent and certificate included therein or filed as an exhibit thereto). As soon as Yorkshire Group is advised thereof, it will advise ML orally (and to confirm such notice advice in writing:
) of (i) when the issuance of any stop order under the Securities Act with respect to the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any therefor, of such purposes. The Offerors which Yorkshire Group shall have received notice, and will use their its best efforts to prevent the issuance of any such stop order and to secure the prompt removal thereof, if issued and (ii) any request by the Commission for amendments or of any other such order and if any such order is issued, supplements to cause such order to be withdrawn the Registration Statement or lifted as soon as possible.
(c) the Prospectus or for additional information relating thereto. The Offerors shall furnish will deliver to the UnderwritersRepresentatives sufficient conformed copies of the Registration Statement, the Preliminary Prospectus and the Prospectus and of all supplements and amendments thereto (in each case without exhibits) for distribution to each Underwriter and, from time to time without charge, as soon as availabletime, as many copies of the Preliminary Prospectus and the Prospectus and any amendments and supplements thereto in forms approved by the Representatives as the Underwriters may reasonably request of (i) for the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before purposes contemplated by the Securities Act or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements theretoExchange Act.
(db) During If, during the time period (not exceeding nine months) when the delivery of a prospectus is shall be required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus by law in connection with the distribution sale of any Trust Securities by any Underwriter or dealer, any event relating to or affecting any of the Designated Preferred SecuritiesOfferors, or of which any of the Offerors shall forthwith amend be advised in writing by the Underwriters, shall occur, which in the opinion of counsel for any of the Offerors or the Underwriters should be set forth in a supplement the Registration Statement to or an amendment of the Prospectus, as in order to make the case may be, by preparing and filing with Prospectus not misleading in the Commission (provided light of the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments ofcircumstances when it is delivered, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may if for any other reason it shall be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary during such period to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus order to comply with the 1933 Securities Act and or the 1933 Act RegulationsExchange Act, the Offerors shallforthwith will (i) notify the Underwriters to suspend solicitation of offers to purchase or purchases of the Trust Securities and (ii) at its expense, subject make any such filing or prepare and furnish to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such Underwriters a reasonable number of copies as you may reasonably request of a supplement or supplements or an amendment or amendments of, or a to the Prospectus which will supplement or supplements to, amend the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended supplemented or supplementedamended, the Prospectus shall it will not contain an any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were madewhen the Prospectus is delivered, not misleadingmisleading or which will effect any other necessary compliance. In case any Underwriter is required to deliver a prospectus in connection with the sale of any Trust Securities after the expiration of the period specified in the preceding sentence, the Offerors, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of such Underwriter, a reasonable quantity of supplements or amendments to the Prospectus complying with Section 10(a) of the Securities Act.
(c) Yorkshire Group will make generally available to its security holders as soon as practicable but not later than 45 days after the close of the period covered thereby, an earning statement of Yorkshire Group (in form complying with the provisions of Section 11(a) of the Securities Act and Rule 158 of the rules and regulations of the Commission under the Securities Act) covering a twelve-month period beginning not later than the first day of Yorkshire Group's fiscal quarter next following the "effective date" (as defined in Rule 158) of the Registration Statement.
(d) As soon as practicable after the date of this Agreement, and in any event within the time prescribed by Rule 424, the Offerors will file the Prospectus with the Commission and will advise ML of such filing and to confirm such advice in writing.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order will use their best efforts to qualify the Designated Preferred Securities (and, if necessary, the Debentures Guarantee and the Junior Subordinated Debentures) for offering offer and sale under the securities or "blue sky sky" laws of such jurisdictions as you the Underwriters may reasonably request designate within six months after the date hereof and shall continue such qualifications will pay, or will reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in effect so long as may be advisable for distribution of connection therewith in an amount not exceeding $3,500 in the Designated Preferred Securitiesaggregate (including filing fees and expenses paid and incurred prior to the date hereof); provided, however, that neither the Offerors Trust, Yorkshire Finance nor Yorkshire Group shall not be required to qualify to do business as a foreign corporation or to file a general consent to service of process in or to file annual reports or to comply with any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required other requirements deemed by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately ofTrust, and confirm in writing, the suspension of qualification of the Designated Preferred Securities Yorkshire Finance or threat thereof in any jurisdictionYorkshire Group to be unduly burdensome.
(f) Yorkshire Group or Yorkshire Finance will pay, except as otherwise expressly provided herein, for all expenses incidental to the performance of its obligations under this Agreement, including (i) the preparation of the Registration Statement, the Preliminary Prospectus and the Prospectus (and any amendments or supplements thereto), (ii) the issuance and delivery of the Securities, the Junior Subordinated Debentures, the Debentures Guarantee and the Control Certificate, (iii) the fees and disbursements of the Offerors' counsel and accountants, (iv) the fees of The Bank of New York, the Delaware Trustee and the fees and disbursements of their counsel, (v) the fees and expenses in connection with the rating of the Trust Securities by securities rating organizations, (vi) the printing and delivery of copies of the Registration Statement, the Preliminary Prospectus and the Prospectus (including any amendments or supplements thereto), (vii) the fees and expenses in connection with the listing of the Trust Securities and, if applicable, the Junior Subordinated Debentures on the New York Stock Exchange and the Junior Subordinated Debentures on the Luxembourg Stock Exchange including the applications therefor and (viii) the Offerors' costs and expenses for travel, lodging and incidental expenses relating to investor presentations on any "road show" undertaken in connection with the marketing of the Trust Securities. It is understood that, except as provided in Section 4(e), this Section 4(f), Section 4(g) and Section 6 hereof, the Underwriters will pay all of their costs and expenses, fees of their counsel, Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, transfer taxes payable on resale of any of the Trust Securities by them, and any advertising expenses connected with any offers they may make.
(g) If the Underwriters shall not take up and pay for the Trust Securities due to the failure of the Offerors to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 7 or 8 hereof, Yorkshire Group or Yorkshire Finance will pay the fees and disbursements of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Trust Securities due to the failure of the Offerors to comply with any of the conditions specified in Section 3 hereof, Yorkshire Group or Yorkshire Finance will reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(h) During the period of 30 days from the date hereof, the Offerors agree not to sell, offer to sell, offer to sell, grant any option for the sale of, or otherwise dispose of, without the prior written consent of the Representatives, any Trust Securities, any security convertible into or exchangeable into or exercisable for Trust Securities or the Junior Subordinated Debentures or debt securities substantially similar to the Junior Subordinated Debentures or equity securities substantially similar to the Trust Securities (except for the Junior Subordinated Debentures and the Trust Securities issued pursuant to this Agreement).
(i) The Offerors shall make generally available will (1) use their reasonable best efforts to list, subject to notice of issuance, the Trust Securities on the New York Stock Exchange and to register the Trust Securities under the Exchange Act; (2) if the Trust Securities are exchanged for Junior Subordinated Debentures, use their security holders in reasonable best efforts to list, subject to notice of issuance, the manner contemplated by Rule 158 Junior Subordinated Debentures on any exchange on which the Trust Securities are then listed and to register the Junior Subordinated Debentures under the Exchange Act; and (3) use their reasonable best efforts to list the Junior Subordinated Debentures on the Luxembourg Stock Exchange.
(j) At any time prior to completion of the 1933 Act Regulations offering of the Trust Securities by the Underwriters to purchasers, the Offerors will not make any amendment or supplement to the Prospectus of which the Underwriters shall not have previously been advised and furnish furnished a copy.
(k) The Offerors will use their reasonable best efforts to you as soon as practicable, but in any event not later than 16 months after permit the Effective Date, a consolidatedTrust Securities to be eligible for clearance and settlement through DTC.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of ), the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and and, if requested by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effectiveEffective Date, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which unless you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or and to which you or counsel for the Underwriter Underwriters shall objectnot have objected. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does do not reasonably object), ) and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for use their best efforts to permit the Underwriters in order to qualify the Designated Preferred Securities to be eligible for offering clearance and sale under settlement through the securities or blue sky laws facilities of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionDTC.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 sixteen (16) months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least twelve (12) consecutive months beginning after the Effective Date, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or the Nasdaq National Market, any national securities exchange, or other self-regulatory organization, and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors have the legal obligation not to reveal to the Representatives.
(i) Until the earlier of the Option Closing Date or the expiration of the Option, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become included in the Nasdaq National Market or in lieu thereof to be listed or quoted on another national securities exchange, and to remain so included, listed or quoted for at least five (5) years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are then listed and are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly included in the Nasdaq National Market or listed or quoted on a national securities exchange or other organization in or on which the Designated Preferred Securities are then included, listed or quoted, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) Except as described in the Prospectus and pursuant to a publicly announced stock repurchase program to purchase shares of Company common stock, the Offerors shall not, for a period of one hundred eighty (180) days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities, except pursuant to publicly announced employee benefit plans in accordance with the terms thereof.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior consent.
(o) The Offerors shall inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if either of the Offerors or any of the Subsidiaries commences engaging in business with the government of Cuba or with a person or affiliate located in Cuba, with such information to be provided within ninety (90) days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Sources: Underwriting Agreement (Great Southern Bancorp Inc)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with In further consideration of the agreements of the Underwriters herein contained, each of the Offerors covenants as follows:
(a) The Offerors shall use their best efforts To prepare the Prospectus and to cause file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to furnish to each of Gold▇▇▇ ▇▇▇h▇ ▇▇▇ Morg▇▇ Stan▇▇▇ ▇▇▇ manually signed copy of the Registration Statement and any all amendments thereto; to advise Gold▇▇▇ ▇▇▇h▇ ▇▇▇ Morg▇▇ Stan▇▇▇, if not effective at the time of execution of this Agreement▇▇omptly after it receives notice thereof, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other of any order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending of the suspension of the qualification of any the Preferred Securities, Junior Subordinated Notes or the shares of Stock issuable upon conversion of the Designated Preferred Securities for offering or sale in any jurisdiction jurisdiction, of the initiation or the institution or threat of institution threatening of any proceedings proceeding for any such purpose, or of such purposes. The Offerors shall use their best efforts to prevent any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any other such order and if preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such order is issuedqualification, promptly to cause use reasonable efforts to obtain the withdrawal of such order order.
(b) The Offerors will furnish to be withdrawn the Underwriters, without charge, as many copies of the Preliminary Prospectus and the Prospectus (as supplemented or lifted amended if the Offerors shall have made any supplements or amendments thereto) as soon as possibleGold▇▇▇ Sachs and Morg▇▇ ▇▇▇n▇▇▇ ▇▇▇ reasonably request.
(c) The Offerors shall furnish If at any time prior to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request earlier of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for purchasers who are not their affiliates (as reasonably determined by the Underwriters does not reasonably objectRepresentatives), and furnishing to you(ii) 270 days after the Time of Delivery, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur have occurred as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were the statements are made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), will forthwith amend or supplement the Prospectus by preparing furnishing, at its own expense, to the Underwriters and filing with to dealers (whose names and addresses are furnished to the CommissionOfferors by Gold▇▇▇ ▇▇▇hs and Morg▇▇ Stan▇▇▇) ▇▇ whom the Preferred Securities may have been sold by the Underwriters and, and furnishing upon request, to youany other dealers making such request, such number of copies as you may reasonably request of an amendment or either amendments of, or a supplement to the Prospectus or supplements to, thereto so that the statements in the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements thereinsupplemented will not, in the light of the circumstances under which they were the statements are made, not be misleading.
(d) During such time as the Underwriters are required to deliver a Prospectus pursuant to Section 5 of the Act, the Company will prepare and file with the Commission the documents required to be filed pursuant to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall To make generally available to their its security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 eighteen months after the Effective Dateeffective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158).
(f) The Offerors will cooperate with the Underwriters to qualify the Preferred Securities, the shares of Stock issuable upon conversion of the Preferred Securities and, to the extent required or advisable, the Guarantee and Junior Subordinated Notes, for offer and sale under the securities or "blue sky" laws of such states and other jurisdictions as Gold▇▇▇ ▇▇▇h▇ and Morg▇▇ ▇▇▇n▇▇▇ ▇▇▇ reasonably request and the Company will pay filing fees, reasonable attorneys' fees and disbursements in connection therewith in an amount not exceeding $15,000 in the aggregate (including filing fees and disbursements paid or incurred prior to the date this Agreement becomes effective); provided, however, that neither the Company nor the Trust shall be required to qualify as a consolidatedforeign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Offerors to be unduly burdensome.
(g) The Company will pay all costs and expenses incident to the performance of each of the Offerors' obligations under this Agreement, including (i) the preparation of the Preliminary Prospectus, the Prospectus (including financial statements) and any amendments or supplements thereto, (ii) the preparation and printing of the Preferred Securities certificates, (iii) the issuance and delivery of the Preferred Securities to the Underwriters (other than transfer taxes), (iv) the furnishing of the opinions, letter and certificate referred to in Section 5(b) hereof (other than the opinion referred to in Section 5(b)(ii) hereof), (v) the fees and expenses of the Debt Trustee, the Delaware Trustee, the Property Trustee and the Guarantee Trustee, and in the amounts agreed pursuant to separate agreements. It is understood that the Underwriters shall be solely responsible to pay all fees and expenses of counsel to the Underwriters, and that the Company shall not be liable to reimburse the Underwriters for such fees and expenses.
(h) If the Underwriters shall not take up and pay for the Preferred Securities due to the failure of the Offerors to comply with any of the conditions specified in Section 5 hereof, the Company shall reimburse the Underwriters for all of their reasonable out- of-pocket accountable expenses, in an amount not exceeding a total of $500,000, incurred in connection with the financing contemplated by this Agreement.
(i) During a period of 180 days from the date of the Prospectus, neither the Trust nor the Company will, without the prior written consent of the Representatives, offer, sell (or grant any option or warrant to offer or sell) any Preferred Securities, or any security convertible into or exchangeable for the Preferred Securities or the Junior Subordinated Notes or any securities substantially similar to the Preferred Securities or the Junior Subordinated Notes (except for the Junior Subordinated Notes and the Preferred Securities issued pursuant to this Agreement) or any Common Stock of the Company; provided, however, that the foregoing shall not apply to any securities or options to purchase any securities granted or sold pursuant to any employee or director compensation plans described in the Registration Statement.
Appears in 1 contract
Sources: Underwriting Agreement (Sei Trust I)
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriter immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
Commission (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities or capital stock, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriter shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, you as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-2 under the 1933 Act) all consents and signed copies of a▇▇ ▇▇▇▇▇nts and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements theretoas you may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriter, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriter may reasonably request designate and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; provided, however, that the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available (within the meaning of Rule 158) to their security holders its securityholders, the Underwriter and the Securityholders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiary (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, Regulations) covering a period of at least 12 months beginning after the effective date of the Registration Statement but in any event not later than 16 months the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures. The Company and the Bank will use the net proceeds received by them from the sale of the Junior Subordinated Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds".
(i) The Offerors, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Effective DateClosing Time, the Company will furnish to the Underwriter, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports, Proxy Statements, and information as shall be furnished by the Company to its stockholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all documents and notices required by the Nasdaq Stock Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay for the legal fees and related filing fees to its counsel to prepare one or more "blue sky" surveys (each, a consolidated"Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(m) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to each of the Underwriter and counsel to the Underwriter, a hard-bound copy of the documents used in connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K under the Securities Act, except as contemplated by the Prospectus.
(p) During a period of forty-five days from the date of the Prospectus, neither the Trust nor the Company will, without the prior written consent of the Underwriter, directly or indirectly, offer, sell, offer to sell, or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or other securities of the Trust or the Company which are substantially similar to the Preferred Securities, including any guarantee of such securities. The foregoing sentence shall not apply to any of the Preferred Securities to be sold hereunder.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any the Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any the Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any the Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith at their cost and expense amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall file the DTC Letter of Representations and any other documents required to be filed by the Offerors in connection therewith in order to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the Effective Date, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the New York Stock Exchange or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives.
(j) For a period of 30 days from the Effective Date, the Offerors shall not, without Stifel, Nicolaus & Company, Incorporated's prior written consent, dir▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇tly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company or any other financing subsidiary organized by the Company that are substantially similar to the Designated Preferred Securities (other than the Common Securities of the Trust to be issued to the Company), including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, except for the registration of the Designated Preferred Securities and the sales to the Underwriters pursuant to this Agreement.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become listed on the New York Stock Exchange and to remain so listed for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on the New York Stock Exchange or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(l) The Offerors will provide you with copies of any correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Designated Preferred Securities under the 1933 Act.
(m) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(n) Except as described in the Prospectus, the Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities, except for any purchases of shares of the Company's common stock pursuant to a publicly announced stock buy back program.
(o) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(p) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities which you shall not previously have been provided a copy a reasonable time prior to the release thereof or provided reasonable notice thereof and you shall not have reasonably objected thereto, except for press releases by the Subsidiaries made in the ordinary course of business consistent with past practices that do not include information material to an investor in the Designated Preferred Securities.
(q) The Offerors shall use best efforts to comply with all applicable registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors ---------------------------------- covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriter immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-post- effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
Commission (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities or capital stock, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement, if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriter shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, you as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-2 under the ▇▇▇▇ ▇▇▇) and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements theretoas you may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriter, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriter may reasonably request designate in writing and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; provided, however, that ------------------ the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available (within the meaning of Rule 158) as soon as practible, but not later than the Availability Date (as defined below) to their its security holders, the Underwriter and the Security holders an earnings statement (which need not be audited) of the Company and its subsidiary (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 Regulations) covering a period of at least 12 months beginning after the Effective effective date of the Registration Statement. For the purpose of the preceding sentence, "Availability Date" means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such effective date, a consolidatedexcept that, if such fourth fiscal quarter is the last quarter of the Company's fiscal year, "Availability Date" means the 90th day after the end of such fourth fiscal quarter.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly --------------------------------- and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of ), the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and and, if requested by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does do not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for use their best efforts to permit the Underwriters in order to qualify the Designated Preferred Securities to be eligible for offering clearance and sale under settlement through the securities or blue sky laws facilities of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionDTC.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with The Nasdaq National Market, any national securities exchange, or other self-regulatory organization, and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors have the legal obligation not to reveal to the Representatives.
(i) Until the earlier of the Option Closing Date or the expiration of the Underwriters' Option, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become included in The Nasdaq National Market or in lieu thereof to be listed on the New York Stock Exchange or another national securities exchange, and to remain so included or listed for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust
Appears in 1 contract
Sources: Underwriting Agreement (First Preferred Capital Trust Ii)
Certain Covenants of the Offerors. The Each of the Offerors ---------------------------------- covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriter immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-post- effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities or capital stock, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriter shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, you as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-2 under the ▇▇▇▇ ▇▇▇) and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements theretoas you may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriter, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriter may reasonably request designate and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; provided, however, that the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a ------------------ any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available (within the meaning of Rule 158) to their security holders its securityholders, the Underwriter and the Securityholders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, Regulations) covering a period of at least 12 months beginning after the effective date of the Registration Statement but in any event not later than 16 months the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures. The Company and the Bank will use the net proceeds received by them from the sale of the Junior Subordinated Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds".
(i) The Offerors, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Effective DateClosing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports, Proxy Statements and information as shall be furnished by the Company to its stockholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all documents and notices required by the Nasdaq Stock Market of companies that have issued securities that are traded on the National Market, in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay the legal fees and related filing fees of counsel to the Underwriter to prepare one or more "blue sky" surveys (each, a consolidated"Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(m) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a post- effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to the Underwriter and counsel to the Underwriter, copies of the documents used in connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K under the 1933 Act, except as contemplated by the Prospectus.
(p) During a period of thirty (30) days from the date of the Prospectus, neither the Trust nor the Company will, without the prior written consent of the Underwriter, directly or indirectly, offer, sell, offer to sell, or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or other securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such securities. The foregoing sentence shall not apply to any of the Preferred Securities to be sold hereunder.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors jointly and --------------------------------- severally covenant with the several Underwriters as follows:
(a) The Offerors shall use their best efforts to cause To notify the Registration Statement Underwriters promptly, and confirm the notice in writing, (i) of any amendments thereto, if not effective at request by the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective Commission for any amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
, and (ivii) of the issuance institution by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness proceedings in respect of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification initiation of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall that purpose, and to use their its best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted obtain as soon as possible.possible its lifting, if issued;
(b) To file the Prospectus with the Commission pursuant to Rule 424(b) under the 1933 Act not later than the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the 1933 Act; to advise you promptly of any such filing; and to advise you promptly of any proposal to file or prepare
(i) any amendment to the Registration Statement (including any post-effective amendment), (ii) any amendment or supplement to the Prospectus (including any revised prospectus which the Offerors propose for use by the Underwriters in connection with the offering of the Preferred Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), or (iii) any document that would as a result thereof be incorporated by reference in the Prospectus whether pursuant to the 1933 Act, the 1934 Act or otherwise; and will furnish the Underwriters with copies of any such amendment, supplement or other document a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment, supplement or other document or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object in writing;
(c) The Offerors shall furnish to To use their best efforts, in cooperation with the Underwriters, from time to time without charge, as soon as available, as many copies qualify the Preferred Securities (and the Guarantee) and the Junior Subordinated Debentures for offer and sale under the securities or blue sky laws of such states and the other jurisdictions of the United States as the Underwriters may reasonably request designate, to continue such qualifications in effect so long as required for the distribution of the Preferred Securities and to reimburse you for any expenses (iincluding filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the registration statement Preferred Securities for offer and sale, to continue such qualification, to determine the eligibility of the Preferred Securities for investment and to print the memoranda relating thereto; provided that none of the Offerors shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified, to consent to service of process in any jurisdiction other than with respect to claims arising out of the offering or sale of the Preferred Securities, or to meet any other requirement in connection with this paragraph (c) deemed by such Offeror to be unduly burdensome; and the Company will advise ▇▇▇▇▇▇▇ ▇▇▇▇▇ promptly of any order or communication of any public authority known to the Company suspending or threatening to suspend the qualification of the Preferred Securities for sale, or the eligibility of the Preferred Securities for purchase by such institutions, in any jurisdiction;
(d) Promptly to deliver to you two signed copies of the Registration Statement as originally filed and of all amendments thereto, in executed formthereto heretofore or hereafter filed, including exhibitsconformed copies of all exhibits except those incorporated by reference, whether filed before or after and such number of unsigned copies of the Registration Statement becomes effective(but excluding the exhibits), (ii) all exhibits each related preliminary prospectus, the Prospectus, and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all any amendments and supplements thereto, and (v) as the Prospectus, and all amendments and supplements thereto.Underwriters may reasonably request;
(de) During Promptly to furnish to each Underwriter, from time to time during the time period when a prospectus the Prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies of the Prospectus (as you amended or supplemented) as such Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, for the Registration Statement purposes contemplated by the 1933 Act or the Prospectus1933 Act Regulations;
(f) If, as at any time when the case may Prospectus relating to the Preferred Securities is required to be (delivered under the 1933 Act in form and substance reasonably satisfactory to you and counsel for connection with sales of the Underwriters). If Preferred Securities, any event shall occur occurs as a result of which it is necessary to amend or supplement the Prospectus to correct as then amended or supplemented would include an untrue statement of a material fact or omit to include a state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with the 1933 Act and or the 1933 Act Regulations, to advise the Offerors shallUnderwriters of such event or necessity, as the case may be, and, promptly upon request made by the Underwriters, to prepare and file with the Commission subject to the second sentence of this subsection paragraph (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of b) above an amendment or amendments ofsupplement which will correct such statement or omission or an amendment which will effect such compliance; provided that the expense of preparing -------- and filing any such amendment or supplement (i) which is necessary in connection with such a delivery of the Prospectus more than nine months after the date of this Agreement or (ii) which relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that the Underwriters shall, upon inquiry by the Company, advise the Company whether or a supplement not any Underwriter or supplements todealer which shall have been selected by you retains any unsold Preferred Securities and, for the purposes of this paragraph (f), the Prospectus (in form and substance satisfactory Company shall be entitled to you and counsel for assume that the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities has been completed when it is advised by you that no Underwriter or such dealer retains any Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business ;
(g) As soon as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writingpracticable, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall Trust will make generally available to their its security holders in an earnings statement of the manner contemplated by Company covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the 1933 Act which will satisfy the provisions of Section 11(a) of the 1933 Act Regulations Act;
(h) The Offerors will use best efforts to effect the listing of the Preferred Securities on the New York Stock Exchange; if the Preferred Securities are exchanged for Junior Subordinated Debentures, the Company will use its best efforts to effect the listing of the Junior Subordinated Debentures on the exchange on which the Preferred Securities were then listed;
(i) During a period of 30 days from the date of this Agreement, neither the Trust nor the Company will, without the Underwriters' prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Junior Subordinated Debentures or any debt securities substantially similar to the Junior Subordinated Debentures or equity securities substantially similar to the Preferred Securities (except for the Junior Subordinated Debentures and furnish the Preferred Securities issued pursuant to you as soon as practicable, but this Agreement); and
(j) The Trust will apply the net proceeds from the sale of the Preferred Securities for the purposes set forth in any event not later than 16 months after the Effective Date, a consolidatedProspectus.
Appears in 1 contract
Sources: Underwriting Agreement (Pennsylvania Power & Light Co /Pa)
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriters immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
Commission or notice from the Commission that it will not review the Registration Statement (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities or capital stock, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriters shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, Underwriters as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-2 under the 1933 Act) and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto▇▇ ▇▇▇ ▇nderwriters may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriters, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriters may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriters, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriters may reasonably request.
(e) The Company will comply to the best of their ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a Prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriters or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriters, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriters may reasonably request designate and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; provided, howeverPROVIDED HOWEVER, that the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available to their security holders in (within the manner contemplated by meaning of Rule 158 of the 1933 Act Regulations Regulations) to its securityholders, the Underwriters and furnish to you the Securityholders as soon as practicable, but in any event not later than 16 months 90 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158 of the 1933 Act Regulations) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures. The Company and the Bank will use the net proceeds received by them from the sale of the Junior Subordinated Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds".
(i) The Offerors, during the period when the Prospectus is required to be delivered under the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriters, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports, Proxy Statements, and information as shall be furnished by the Company to its shareholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all documents and notices required by the Nasdaq Stock Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay for the legal fees and related filing fees of counsel to the Underwriters to prepare one or more "blue sky" surveys (each, a consolidated"Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriters.
(m) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then the Offerors will prepare, and file or transmit for filing with the Commission in accordance with such Rule 430A and Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a post-effective amendment to the Registration Statement (including an amended Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to each of the Underwriters and counsel to the Underwriters, a hard-bound copy of the documents used in connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K promulagated under the 1933 Act, except as contemplated by the Prospectus.
(p) During a period of forty-five days from the date of the Prospectus, neither the Trust nor the Company will, without the prior written consent of the Underwriters, directly or indirectly, offer, sell, offer to sell, or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or other securities of the Trust or the Company which are substantially similar to the Preferred Securities, including any guarantee of such securities. The foregoing sentence shall not apply to any of the Preferred Securities to be sold hereunder.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and and, if requested by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; providedPROVIDED, howeverHOWEVER, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or any threat thereof of which they are aware in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner, and only in the manner, specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives.
(j) Without the prior written consent of the Representatives for a period of 90 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities (other than the issuance to and purchase by the Company of the Common Securities of the Trust), including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, except for the registration of the Designated Preferred Securities and the sales to the Underwriters pursuant to this Agreement.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on a national securities exchange or include them in a comparable automated quotation system on or in which the Designated Preferred Securities are then listed or included and to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities.
(n) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities without your prior consent.
(p) The Offerors shall comply with all registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for to the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters you or counsel for to the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for to the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for to the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for to the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representative copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representative may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representative.
(i) For a period of 180 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representative.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representative, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representative, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of any of the Offerors' securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior written consent.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any the Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; providedPROVIDED, howeverHOWEVER, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained) or with any national securities exchange or The Nasdaq Stock Market or other self-regulatory organization (other than portions for which confidential treatment has been obtained) and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives.
(j) For a period of 90 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on The Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on The Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(m) Except as described in the Prospectus, the Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' trust preferred securities and in no event shall the Offerors at any time, directly or indirectly, engage in any activity, enter into any transaction or take or cause to be taken any action if to do so would constitute a default, with or without notice or lapse of time or both, under the Senior Note Indenture, if such default would have a material adverse effect, or is reasonably likely to have a material adverse effect, on the holders of the Designated Preferred Securities or the market value of the Designated Preferred Securities.
(n) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities without your prior consent.
(p) The Offerors shall comply with all registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
Appears in 1 contract
Sources: Underwriting Agreement (Local Financial Capital Trust I)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, then the Offerors will shall prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will shall provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you the Representative immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and and, if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 ActAct in connection with sales by the Underwriters or any dealer, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Representative shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you the Representative or its counsel for the Underwriter shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters Representative or its counsel for the Underwriters does not reasonably object), and furnishing to youthe Underwriters, such number of copies as you the Underwriters may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you the Representative and counsel for the Underwritersits counsel). If If, at any time when a prospectus relating to the Preferred Securities is required to be delivered under the 1933 Act or the 1933 Act Regulations in connection with sales by the Underwriters or any dealer, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at its cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to youthe Underwriters, such number of copies as you the Underwriters may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance reasonably satisfactory to you the Representative and counsel for the Underwritersits counsel) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you the Representative and its counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions within the United States of America as you the Representative may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will shall notify you the Representative immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you the Representative as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Regulations.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For 5 years from the Effective Date, the Offerors shall furnish to the Representative copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities or its common stock as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with or any national securities exchange or self-regulatory organization, and such other documents, reports and information concerning the business and financial condition of the Offerors as the Representative may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representative.
(i) For a period of 180 days from the Effective Date, the Offerors shall not, without the Representative's prior written consent, directly or indirectly offer, sell, contract to sell or otherwise dispose of Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities.
(j) The Offerors shall, as provided in the Trust Agreement and the Indenture, use their best efforts to cause the Designated Preferred Securities to become listed on the American Stock Exchange LLC or in lieu thereof another national securities exchange. If the Designated Preferred Securities are exchanged for Debentures, the Company shall, as provided in the Trust Agreement and the Indenture, use its best efforts to have the Debentures promptly listed on the American Stock Exchange LLC or another organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' Option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Company nor any of the Subsidiaries shall take any action (or refrain from taking any action) which shall result in the Company or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there shall not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings (except for repurchase agreements in the ordinary course of business consistent with past practice) of the Company and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to (i) cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities or (ii) otherwise violate the Commission's Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(m) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors shall not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Company, the Subsidiaries or the offering of the Designated Preferred Securities without the Representative's prior written consent.
(n) The Offerors shall comply with all registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
(o) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representative, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, any prepayment or notice of prepayment) of any of the Offerors' securities, other than the redemption of the Preferred Securities pursuant to their terms and as contemplated in the Prospectus.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriter immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause such order obtain the lifting thereof at the earliest practicable moment.
(b) The Offerors will not at any time file or make any amendment to be withdrawn the Registration Statement or, if the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or lifted as soon as possiblesupplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, Underwriter as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-2 under the 1933 ▇▇▇) ▇▇d signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) as the Prospectus, and all amendments and supplements theretoUnderwriter may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereintherein not misleading, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleading.
(e) The Offerors or if it shall cooperate with you and counsel for be necessary, in the Underwriters reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection comply with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 requirements of the 1933 Act Regulations or the 1933 Act Regulations, the Company will promptly prepare and furnish file with the Commission, subject to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedSection
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any the Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to -------- ------- qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately promptly of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or The Nasdaq Stock Market or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives.
(j) For a period of 30 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities (other than pursuant to this Agreement), any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without your prior written consent.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on The Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on The Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(m) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities.
(n) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to (i) cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities or (ii) otherwise violate the Commission's Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(o) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities which you shall not previously have been provided a copy a reasonable time prior to the release thereof or provided reasonable notice thereof and you shall not have reasonably objected thereto.
(p) The Offerors shall use their best efforts to comply with all applicable registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
(q) The Offerors shall inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Designated Preferred Securities by the Underwriters if either of the Offerors or any of the Subsidiaries commences engaging in business with the government of Cuba or with a person or affiliate located in Cuba, with such information to be provided within 90 days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Sources: Underwriting Agreement (Private Bancorp Capital Trust I)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as followshereby agree:
(a) The to furnish such information as may be required and otherwise to cooperate in qualifying the Securities, and, to the extent required or advisable, the Guarantee and the Subordinated Debentures, for offering and sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect so long as required for the distribution of the Securities; provided that the Company and the Trust shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Securities); and to promptly advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for 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 many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Offerors shall use their best efforts to cause the Registration Statement and have made any amendments or supplements thereto, if not effective at ) as the time Underwriters may reasonably request for the purposes contemplated by the Act; in case any Underwriter is required to deliver a prospectus beyond the nine-month period referred to in Section 10(a)(3) of execution the Act in connection with the sale of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, thenSecurities, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus orpromptly upon request, if required by Rule 430Aat its expense, a post-effective such amendment or amendments to the Registration Statement (including and such prospectuses as may be necessary to permit compliance with the Prospectusrequirements of Section 10(a)(3) containing all information so omitted and will provide evidence satisfactory to of the Representative of such timely filing.Act;
(bc) The Offerors shall notify to advise you immediatelypromptly, and confirm confirming such notice advice in writing:
(i) when , of any request by the Registration Statement, Commission for amendments or any post-effective amendment supplements to the Registration Statement, has become effective, Statement or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the issuance by Registration Statement and, if the Commission or any state or other regulatory body of any should enter a stop order or other order suspending the effectiveness of the Registration Statement, preventing to make every reasonable effort to obtain the lifting or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any removal of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish ; to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request advise you promptly of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel proposal to amend or supplement the Registration Statement or Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which you shall object in writing;
(d) that the Company will file promptly all reports and any definitive proxy or information statement required to be filed by the Company with the Commission in order to comply with the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the distribution offering or sale of the Designated Preferred Securitiesshares, and to promptly notify you of such filing;
(e) if, at the time this Agreement is executed and delivered, it is necessary for the registration statement or a post-effective amendment thereto or any Abbreviated Registration Statement to be declared effective before the offering of the Securities may commence, the Offerors shall forthwith amend or supplement will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the ProspectusRegistration Statement or such post-effective amendment has become effective;
(f) to furnish to you and, as upon request, to each of the case may beother Underwriters for a period of three years from the date of this Agreement (i) copies of any reports or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, by preparing (ii) copies of all annual, quarterly and filing current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, (provided iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Underwriters or counsel for the Underwriters does not reasonably object)Offerors are listed, and furnishing to you, (iv) such number of copies other information as you may reasonably request regarding the Offerors or the Subsidiaries, in each case as soon as such communications, documents or information becomes available; provided, however, that in no case shall the Offerors be required to furnish materials pursuant to this paragraph which are filed and publicly accessible via EDGAR;
(g) to advise the Underwriters promptly of an amendment or amendments of▇▇▇ happening of any event known to the Offerors within the time during which a Prospectus relating to the Securities is required to be delivered under the Act which, in the judgment of the Offerors, would require the making of any change in the Prospectus then being used, or a supplement or supplements toin the information incorporated therein by reference, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement so that the Prospectus to correct would not include an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were are made, not misleading., and, during such time, to prepare and furnish, at the Offerors' expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;
(eh) The 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 after the date of the Prospectus (as contemplated in Rule 158(c) of the Act) as soon as is reasonably practicable after the termination of such twelve-month period;
(i) to furnish to each of the Representatives and Dewey Ballantine LLP one conformed copy of the Registration ▇▇▇▇▇▇▇▇▇, ▇▇ initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein), and sufficient conformed copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters;
(j) to furnish to you as early as practicable prior to the time of purchase and the additional time of purchase, as the case may be, but not later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company and the Subsidiaries which have been read by the Company's independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(d) hereof;
(k) to apply the proceeds from the sale of the Securities in the manner set forth under the caption "Use of Proceeds" in the Prospectus;
(l) that the Offerors shall cooperate will jointly and severally be responsible for payment of all expenses, fees and taxes in connection with you (i) the preparation and counsel for filing of the Registration Statement, the Basic Prospectus, any Prepricing Prospectus, the Prospectus Supplement, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters in order and to qualify dealers (including costs of mailing and shipment), (ii) the Designated Preferred Securities issuance, sale and delivery of the Securities, (iii) the word processing and/or printing of this Agreement, any Agreement Among Underwriters and any dealer agreements and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (iv) the qualification of the Securities, the Guarantee and Subordinated Debentures issuable upon exchange of the Securities, for offering and sale under state laws and the securities or determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements of counsel to the Underwriters) and the printing and furnishing of copies of any blue sky laws of such jurisdictions as you may reasonably request surveys or legal investment surveys to the Underwriters and shall continue such qualifications in effect so long as may be advisable for distribution to dealers, (v) any listing of the Designated Preferred Securities; providedSecurities on any securities exchange and any registration thereof under the Exchange Act, however(vi) the filing for review of the public offering of the Securities by NASD Regulation, that Inc. (including the Offerors shall not be required legal fees and filing fees and other disbursements of counsel to qualify to do business as a foreign corporation or file a general consent to service the Underwriters with respect thereto), (vii) the cost of process in preparing the Securities and the Company Agreements, (viii) the fees and expenses of the Trustees, the Guarantee Trustee and the Debenture Trustee and any jurisdiction agent of the Trustees, the Guarantee Trustee and the Debenture Trustee and the fees and disbursements of counsel for the Trustees in connection with the foregoing. The Offerors shall file such statements Declaration and reports as may the Securities, counsel for the Guarantee Trustee in connection with the Guarantee and counsel for the Debenture Trustee in connection with the Indenture and the Subordinated Debentures, (ix) any fees charged by securities ratings services for rating the Securities and the Subordinated Indentures, and (x) the performance of the Company's other obligations under this agreement;
(m) to furnish to you, before filing with the Commission subsequent to the effective date of the Registration Statement and during the period referred to in paragraph (g) above, a copy of any document proposed to be required filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(n) to not, without the prior written consent of UBS Warburg, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the laws Company or any affiliate of each jurisdiction the Company or any person in which privity with the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, and confirm in writing, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the suspension meaning of qualification Section 16 of the Designated Exchange Act, any Trust Preferred Securities or threat thereof in substantially similar securities to Trust Preferred Securities, or publicly announce an intention to effect any jurisdiction.such transaction, within 30 days after the time of purchase or the additional time of purchase, as the case may be;
(fo) The Offerors shall make generally available to use their security holders in best efforts to cause the manner contemplated by Rule 158 Securities to be listed on the NYSE within 30 days hereof; if the Securities are exchanged for Subordinated Debentures, the Company will use its best efforts to effect the listing of the 1933 Act Regulations and furnish Subordinated Debentures on any exchange on which the Securities are then listed;
(p) that the Company will use its best efforts to you continue to qualify as soon as practicable, but in any event not later than 16 months after a REIT under the Effective Date, a consolidatedCode.
Appears in 1 contract
Sources: Underwriting Agreement (Senior Housing Properties Trust)
Certain Covenants of the Offerors. The Each of the Offerors --------------------------------- covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any amendments post- effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Offerors will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement or, if the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the Prospectus of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Preferred Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Preferred Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not effective include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of execution of this Agreementeither such counsel, at any such time to become effective as promptly as possible. If amend the Registration Statement has become or becomes amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the Underwriter, to qualify the Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, however, that the -------- ------- Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of Rule 158 of the 1933 Act Regulations ("Rule 158") to its securityholders and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures from the Company. The Company and the Bank will use the net proceeds received by them from the sale of the Junior Subordinated Debentures in the manner specified in the Prospectus under the caption "How Our Net Proceeds Will Be Used".
(i) The Offerors, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Preferred Securities, will file promptly all documents required to be filed with the Commission pursuant to Rule 430A Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the corporate finance, syndicate and research departments of the Underwriter copies of the nonconfidential portion of each of the quarterly, annual and other reports filed by the Company with the Commission and such other documents, reports, proxy statements and information has as shall be furnished by the Company to its stockholders generally.
(k) The Company will provide to the holders of the Preferred Securities annual reports containing financial statements audited by the Company's independent auditors and, upon written request, the Company's annual reports on Form 10-K.
(l) The Company will use its best efforts on a commercially reasonable basis to continue to engage independent auditors that have a nationwide practice.
(m) The Offerors will file with the American Stock Exchange all documents and notices required by the American Stock Exchange of companies that have issued securities that are traded on the American Stock Exchange, and quotations for which are reported by the American Stock Exchange. The Offerors also agree to continue to list the Preferred Securities on the American Stock Exchange as long as such securities qualify for the listing.
(n) The Company shall pay the reasonable legal fees and related filing fees of Silver, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P. to prepare one or more "blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(o) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance on upon Rule 430A, then, then the Offerors will prepare prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) ), copies of the an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the an amended Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filingomitted.
(bp) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to the Underwriter and counsel to the Underwriter, a bound volume containing copies of the documents used in connection with the issuance of the Preferred Securities.
(q) The Offerors shall notify you immediatelywill not, and confirm such notice prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in writing:
(i) when the Registration Statementordinary course of business, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when transaction with a prospectus related party which is required to be delivered under disclosed in the 1933 ActProspectus pursuant to Item 404 of Regulation S-K of the Commission, except as contemplated by the Offerors shall comply Prospectus.
(r) During a period of ninety (90) days from the date of the Prospectus, neither the Trust nor the Company will, without the prior written consent of the Underwriter, directly or indirectly, offer, sell, offer to sell, or otherwise dispose of any Preferred Securities, any other beneficial interests in the assets of the Trust, or any preferred securities or other securities of the Trust or the Company that are substantially similar to the best Preferred Securities, including any guarantee of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as such securities. The foregoing sentence shall not apply to permit the completion any of the distribution Preferred Securities to be sold hereunder.
(s) The Company agrees not to declare or pay dividends on, or purchase, redeem or acquire for value any shares of its common stock, return any capital to holders of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto common stock, or make any amendment or supplement to any Preliminary Prospectus or distribution of assets to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion holders of the Company's counsel to amend common stock, unless, from and after the date of any such dividend declaration (a "Declaration Date") or supplement the Registration Statement date of any such purchase, redemption, payment or the Prospectus in connection with the distribution of the Designated Preferred Securitiesspecified above (a "Redemption Date"), the Offerors shall forthwith amend Company retains cash, cash equivalents or supplement marketable securities at the Registration Statement Company in an amount sufficient to pay the eight consecutive quarterly interest payments on the Junior Subordinated Debentures next following such Declaration Date or the ProspectusRedemption Date, unless this would prevent proceeds from counting as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingTier 1 capital.
(et) The Offerors shall cooperate Company will pay dividends to its common shareholders in accordance with you all applicable federal and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering state laws, regulations and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionpolicy statements.
(fu) The Offerors shall make generally available to their security holders in Company will maintain the manner contemplated by Rule 158 debt of the 1933 Act Regulations Company on a parent only basis at an amount which complies with all applicable federal and furnish state laws, regulations and policy statements.
(v) For a period of five years from the date of the Closing Time, the Company will provide a bonus to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated▇▇▇▇ ▇. ▇▇▇▇▇▇▇ that is principally based on performance-based criteria.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement to become effective and will notify the Underwriters immediately, and confirm the notice in writing, (i) when the Registration Statement, or any amendments post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Offerors will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement or, if the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriters shall not previously have been advised and furnished a copy, or to which the Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriters as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the ▇▇▇▇ ▇▇▇) and signed copies of all consents and certificates of experts as the Underwriters may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the Underwriters, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriters may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriters, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriters during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriters may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Preferred Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Preferred Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not effective include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of execution of this Agreementeither such counsel, at any such time to become effective as promptly as possible. If amend the Registration Statement has become or becomes amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the Underwriters, to qualify the Preferred Securities and the Debentures for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriters may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; PROVIDED, HOWEVER, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of Rule 158 of the 1933 Act Regulations ("Rule 158") to the holders of the Preferred Securities and the Underwriters as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Debentures from the Company. The Company and the Bank will use the net proceeds received by them from the sale of the Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Preferred Securities, will file promptly all documents required to be filed with the Commission pursuant to Rule 430A Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriters copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission and such other documents, reports, proxy statements and information has as shall be furnished by the Company to its stockholders generally.
(k) The Company will provide to the holders of the Preferred Securities annual reports containing financial statements audited by the Company's independent auditors and, provided the Company continues to be subject to the Securities Exchange Act of 1934, upon written request, the Company's annual reports on Form 10-K.
(l) The Offerors will file with the NASD all documents and notices required by the NASD of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(m) The Company shall pay the legal fees and related filing fees of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Underwriters, to prepare one or more "blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriters.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance on upon Rule 430A, then, then the Offerors will prepare prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) ), copies of the an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the an amended Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filingomitted.
(bo) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to the Underwriters and counsel to the Underwriters copies of the documents used in connection with the issuance of the Preferred Securities.
(p) The Offerors shall notify you immediatelywill not, and confirm such notice prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in writing:
(i) when the Registration Statementordinary course of business, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when transaction with a prospectus related party which is required to be delivered under disclosed in the 1933 Act, the Offerors shall comply Prospectus pursuant to the best Item 404 of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion Regulation S-K of the distribution Commission, except as contemplated by the Prospectus.
(q) During a period of thirty (30) days from the date of the Designated Preferred Securities as contemplated herein and in Prospectus, neither the Trust Agreement and nor the Prospectus. The Offerors shall not file any amendment to Company will, without the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion written consent of the Company's counsel Underwriters, directly or indirectly, offer, sell, offer to amend sell, or supplement the Registration Statement or the Prospectus in connection with the distribution otherwise dispose of the Designated any Preferred Securities, any other beneficial interests in the Offerors shall forthwith amend assets of the Trust, or supplement any preferred securities or other securities of the Registration Statement Trust or the ProspectusCompany that are substantially similar to the Preferred Securities, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does including any guarantee of such securities. The foregoing sentence shall not reasonably object), and furnishing apply to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may to be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionsold hereunder.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated
Appears in 1 contract
Sources: Underwriting Agreement (Seacoast Financial Services Corp)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of ), the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and and, if requested by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which unless you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or and to which you or counsel for the Underwriter Underwriters shall objectnot have objected. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does do not reasonably object), ) and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance reasonably satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for use their best efforts to permit the Underwriters in order to qualify the Designated Preferred Securities to be eligible for offering clearance and sale under settlement through the securities or blue sky laws facilities of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionDTC.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 sixteen (16) months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least twelve (12) consecutive months beginning after the Effective Date, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or the American Stock Exchange, any other national securities exchange, or other self-regulatory organization, and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors have the legal obligation not to reveal to the Representatives.
(i) Until the earlier of the Option Closing Date or the expiration of the Option, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to be listed on the American Stock Exchange or in lieu thereof to be listed, quoted or included on or in another national securities exchange, or the Nasdaq National Market and to remain so listed, quoted or included for at least five (5) years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are then listed and are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the American Stock Exchange or another national stock exchange or in lieu thereof to be included in the Nasdaq National Market or to be listed, quoted or included on a national securities exchange or other organization in or on which the Designated Preferred Securities are then listed, quoted or included, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) Except as contemplated by the Prospectus and pursuant to a publicly announced stock repurchase program to purchase shares of Company common stock, the Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) any of the Offerors' securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior consent.
(o) The Offerors shall inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if either of the Offerors or any of the Subsidiaries commences engaging in business with the government of Cuba or with a person or affiliate located in Cuba, with such information to be provided within ninety (90) days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Sources: Underwriting Agreement (S Y Bancorp Capital Trust I)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of ), the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and and, if requested by you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effectiveEffective Date, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which unless you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or and to which you or counsel for the Underwriter Underwriters shall objectnot have objected. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does do not reasonably object), ) and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance reasonably satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order use their best efforts to qualify permit the Designated Preferred Securities to be eligible for offering clearance and sale under settlement through the securities or blue sky laws facilities of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionDTC.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 sixteen (16) months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least twelve (12) consecutive months beginning after the Effective Date, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or the Nasdaq National Market, any national securities exchange, or other self-regulatory organization, and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors have the legal obligation not to reveal to the Representatives.
(i) Until the earlier of the Option Closing Date or the expiration of the Option, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become included in the Nasdaq National Market or in lieu thereof to be listed or quoted on a national securities exchange and to remain so listed, quoted or included for at least five (5) years from the Effective Date or for such shorter period as may be specified in a written consent of the Representatives, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are then listed and are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly included in the Nasdaq National Market or a national stock exchange or to be listed, quoted or included on a national securities exchange or other organization in or on which the Designated Preferred Securities are then listed, quoted or included, and to have the Debentures promptly registered under the Exchange Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or, other than in the ordinary course of business, short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) Except as contemplated by the Prospectus and pursuant to a publicly announced stock repurchase program to purchase shares of Company common stock, the Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) any of the Offerors' securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without your prior consent.
(o) The Offerors shall inform the Florida Department of Banking and Finance at any time prior to the consummation of the distribution of the Securities by the Underwriters if either of the Offerors or any of the Subsidiaries commences engaging in business with the government of Cuba or with a person or affiliate located in Cuba, with such information to be provided within ninety (90) days after the commencement thereof or after a change occurs with respect to previously reported information.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors -------------------------------------------------------- covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:: ----------------------------------------------------------------
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriter immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-post- effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
Commission (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities or capital stock, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement, if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriter shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, Underwriter as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-2 under the ▇▇▇▇ ▇▇▇) and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) as the Prospectus, and all amendments and supplements theretoUnderwriter may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriter, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriter may reasonably request designate in writing and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; provided, however, that ------------------ the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available to their security holders in (within the manner contemplated by meaning of Rule 158 of the 1933 Act Regulations and furnish to you 158) as soon as practicablepractible, but in any event not later than 16 months after the Effective Date, a consolidatedAvailability Date (as defined below) to its security
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriter of such timely filing.
(b) The Offerors shall notify you the Underwriter immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating in any way to the Registration Statement, any Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the aforementioned;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and and, if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the UnderwritersUnderwriter, from time to time without charge, as soon as available, as many copies as the Underwriters Underwriter may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Underwriter shall not previously have been advised in writing and provided a copy within a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter or its counsel shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters Underwriter or its counsel for the Underwriters does not reasonably object), and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you the Underwriter and counsel for the Underwritersits counsel). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to youthe Underwriter, such number of copies as you the Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you the Underwriter and counsel for the Underwritersits counsel) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you the Underwriter and its counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you the Underwriter may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you the Underwriter immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you the Underwriter as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Underwriter copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Underwriter may reasonably request, other than such documents, reports and information for which the Offerors have the legal obligation not to reveal to the Underwriter.
(i) For a period of 30 days from the Effective Date, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities or the Debentures, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities without the Underwriter's prior written consent.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Underwriter, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(k) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriter's option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriter shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, and there will not be any material change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(l) The Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Underwriter, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of repayment) of any of the Offeror's securities.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might reasonably be expected to (i) cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities or (ii) otherwise violate the Commission's Regulation M.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without the Underwriter's prior written consent.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to notify the Representative of such timely filing.
(b) The Offerors shall notify you Underwriter immediately, and confirm such the notice in writing:
, (i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
Commission (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectuspreliminary prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities or capital stock, for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement, or any amendment or supplement, if the Offerors have elected to rely upon Rule 430A, to the Prospectus (including documents incorporated by reference into such order prospectus or to be withdrawn the Prospectus) of which the Underwriter shall not have previously been advised and have previously been furnished a copy, or lifted as soon as possibleto which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the Underwriters, from time to time without charge, as soon as available, you as many signed and conformed copies as of the Underwriters may reasonably request of (i) the registration statement Registration Statement as originally filed and of all amendments each amendment thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) copies of all exhibits and documents filed therewith (including documents incorporated therein or filed therewith, (iiiby reference into the Prospectus pursuant to Item 12 of Form S-1 under the 1933 Act) and signed copies of all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements theretoas you may reasonably request.
(d) During The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested during the period when a prospectus the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriter, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriter may reasonably request designate in writing and shall continue to maintain such qualifications in effect so long as may be advisable for distribution a period of not less than one year from the effective date of the Designated Preferred SecuritiesRegistration Statement; provided, however, that the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available (within the meaning of Rule 158) as soon as practible, but not later than the Availability Date (as defined below) to their its security holders, the Underwriter and the Security holders an earnings statement (which need not be audited) of the Company and its subsidiary (in form complying with the manner contemplated by provisions of Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 Regulations) covering a period of at least 12 months beginning after the Effective effective date of the Registration Statement. For the purpose of the preceding sentence, "Availability Date" means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such effective date, a consolidatedexcept that, if such fourth fiscal quarter is the last quarter of the Company's fiscal year, "Availability Date" means the 90th day after the end of such fourth fiscal quarter.
Appears in 1 contract
Sources: Underwriting Agreement (Pittsburgh Home Capital Trust I)
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters each Underwriter as follows:
(a) The Offerors shall use their best efforts to will cause the Registration Statement and any amendments thereto, if not effective at Prospectus Supplement to be timely filed with the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file Commission in accordance with Rule 430A and Rule 424(b) copies and will notify the Underwriters immediately and confirm the notice in writing for so long as the delivery of a prospectus is required in connection with this Offering of the Prospectus orPreferred Securities, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has shall have become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has shall have been filed;
, (ii) of the receipt of any comments or requests from the Commission;
Commission with respect to the Registration Statement, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
information and (iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending of the suspension of the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction jurisdiction, or of the institution or threat of institution threatening of any proceedings for any of such purposes. The Offerors shall will use their best efforts every reasonable effort to prevent the issuance of any such stop order or of any other order preventing or suspending such order and use and, if any such order is issued, to cause such order obtain the lifting thereof at the earliest possible moment.
(b) For so long as the delivery of a prospectus is required in connection with this Offering of the Preferred Securities, the Offerors will not at any time file or make any amendment to be withdrawn the Registration Statement or lifted as soon as possibleany amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriters shall not previously have been advised and furnished a copy, or to which the Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Offerors shall have furnished or will furnish to the UnderwritersUnderwriters as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, from time copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to time Item 12 of Form S-3 under the 1933 Act) and signed copies of all consents and certificates of expert▇ ▇▇ ▇▇▇ Underwriters may reasonably request for so long as the delivery of a prospectus is required in connection with this Offering of the Preferred Securities.
(d) The Offerors will deliver or cause to be delivered to each Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to each Underwriter, without charge, as soon as availablepracticable after this Agreement has been executed and thereafter from time to time as requested, as many copies as during the Underwriters may reasonably request of (i) period when the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 ActAct or 1934 Act in connection with this Offering, such number of copies of the Offerors shall Prospectus (as supplemented or amended) as such Underwriter may reasonably request.
(e) The Company will comply to the best of their its ability with the 1933 Act and the 1933 Act Regulations Regulations, and the 1934 Act and the 1934 Act Regulations Regulations, so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein in this Agreement and in the Trust Agreement and the Prospectus. The Offerors shall not file If, at any amendment time when a prospectus is required by the 1933 Act to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus be delivered in connection with the distribution sales of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur or condition exist as a result of which it is necessary necessary, in the reasonable opinion of counsel for the Underwriters or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement order that the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall will not contain include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, therein not misleading in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingor if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(ef) The Offerors shall cooperate will use their best efforts, in cooperation with you and counsel for the Underwriters in order Underwriters, to qualify the Designated Preferred Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities or blue sky laws of such states and other jurisdictions as you the Underwriters may reasonably request designate and shall continue to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect such jurisdictions for so long as may be advisable for necessary to complete the distribution of the Designated Preferred Securities; provided, provided however, that the Offerors Company shall not be required obligated to qualify to do business as a foreign corporation or file a any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in connection with the foregoingwhich it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Offerors shall Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionabove provided.
(fg) The Offerors shall Company will make generally available to their security holders in (within the manner contemplated by meaning of Rule 158 of the 1933 Act Regulations ("Rule 158"), to the Underwriters and furnish to you the Securityholders as soon as practicable, but in any event not later than 16 months 90 days after the Effective Dateclose of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures from the Company. The Company and the Bank will use the net proceeds received by them from the sale of the Junior Subordinated Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Preferred Securities, will timely file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act.
(j) For so long as the delivery of a prospectus is required in connection with this Offering of the Preferred Securities, the Company will furnish to the Underwriters copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission and such other documents, reports, proxy statements, and information as shall be furnished by the Company to its stockholders generally.
(k) The Offerors will file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have issued securities that are traded in the over-the-counter market and quotations for which are reported by the Nasdaq National Market.
(l) The Company shall pay the legal fees and related filing fees of counsel to the Underwriters to prepare one or more "blue sky" surveys (each, a consolidated"Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriters.
(m) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to each of the Underwriters and counsel to the Underwriters, a hard-bound copy of the documents used in connection with the issuance of the Preferred Securities.
(n) The Offerors will not, prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in the ordinary course of business, or any transaction with a related party which is required to be disclosed in the Prospectus pursuant to Item 404 of Regulation S-K of the Commission, except as contemplated by the Prospectus.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any amendments post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Offerors will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement or, if the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-2 under the ▇▇▇▇ ▇▇▇) and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Preferred Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Preferred Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not effective include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of execution of this Agreementeither such counsel, at any such time to become effective as promptly as possible. If amend the Registration Statement has become or becomes amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the Underwriter, to qualify the Preferred Securities and the Debentures for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of Rule 158 of the 1933 Act Regulations ("Rule 158") to the holders of the Preferred Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Debentures from the Company. The Company and the Bank will use the net proceeds received by them from the sale of the Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Preferred Securities, will file promptly all documents required to be filed with the Commission pursuant to Rule 430A Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission and such other documents, reports, proxy statements and information has as shall be furnished by the Company to its stockholders generally.
(k) The Company will provide to the holders of the Preferred Securities annual reports containing financial statements audited by the Company's independent auditors and, upon written request, the Company's annual reports on Form 10-K.
(l) The Offerors will file with the NASD all documents and notices required by the NASD of companies that have issued securities that are traded in the Nasdaq Stock Market.
(m) The Company shall cause to be prepared by its counsel one or more "blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance on upon Rule 430A, then, then the Offerors will prepare prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) ), copies of the an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the an amended Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filingomitted.
(bo) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Preferred Securities.
(p) The Offerors shall notify you immediatelywill not, and confirm such notice prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in writing:
(i) when the Registration Statementordinary course of business, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when transaction with a prospectus related party which is required to be delivered under disclosed in the 1933 Act, the Offerors shall comply Prospectus pursuant to the best Item 404 of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion Regulation S-K of the distribution Commission, except as contemplated by the Prospectus.
(q) During a period of thirty (30) days from the date of the Designated Preferred Securities as contemplated herein and in Prospectus, neither the Trust Agreement and nor the Prospectus. The Offerors shall not file any amendment to Company will, without the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion written consent of the Company's counsel Underwriter, directly or indirectly, offer, sell, offer to amend sell, or supplement the Registration Statement or the Prospectus in connection with the distribution otherwise dispose of the Designated any Preferred Securities, any other beneficial interests in the Offerors shall forthwith amend assets of the Trust, or supplement any preferred securities or other securities of the Registration Statement Trust or the ProspectusCompany that are substantially similar to the Preferred Securities, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does including any guarantee of such securities. The foregoing sentence shall not reasonably object), and furnishing apply to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may to be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionsold hereunder.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated
Appears in 1 contract
Sources: Underwriting Agreement (Southern Community Capital Trust I)
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any amendments post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Offerors will use their best efforts to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement or, if the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the Prospectus of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Corporation will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not effective include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of execution of this Agreementeither such counsel, at any such time to become effective as promptly as possible. If amend the Registration Statement has become or becomes amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Corporation will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the Underwriter, to qualify the Securities and the Junior Subordinated Debentures, for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; PROVIDED, HOWEVER, that the Corporation shall not be obligated to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Corporation will file such statements and reports as may be required by the laws of each jurisdiction in which the Securities have been qualified as above provided.
(g) The Corporation will make generally available (within the meaning of Rule 158 of the 1933 Act Regulations ("Rule 158")) to its securityholders and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Corporation and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Corporation's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Corporation of the Trust's Common Securities, to purchase an equivalent amount of Junior Subordinated Debentures from the Corporation. The Corporation and the Bank will use the net proceeds received by them from the sale of the Shares and the Junior Subordinated Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds," including the repayment of the full balance outstanding of the Huntington Line of Credit.
(i) The Offerors, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Securities, will file promptly all documents required to be filed with the Commission pursuant to Rule 430A Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Corporation will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Corporation with the Commission and such other documents, reports, proxy statements and information has as shall be furnished by the Corporation to its shareholders generally.
(k) The Corporation will provide to the holders of the Preferred Securities annual reports containing financial statements audited by the Corporation's independent auditors and, upon written request, the Corporation's annual reports to the Commission on Form 10-K.
(l) The Offerors will file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have issued securities that are traded on the Nasdaq National Market, in the over-the-counter market and quotations for which are reported by the Nasdaq Stock Market.
(m) The Corporation will not take any action which would cause or result in the delisting of the Corporation's Common Stock or the Trust's Preferred Securities on the Nasdaq National Market, prior to the Closing Time, or, if the Underwriter exercises the options granted by the Offerors to cover overallotments, prior to the Option Closing Date.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance on upon Rule 430A, then, then the Offerors will prepare prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) ), copies of the an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the an amended Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filingomitted.
(bo) The Corporation will, at its expense, subsequent to the issuance of the Securities, prepare and distribute to the Underwriter and counsel to the Underwriter, a bound volume containing copies of the documents used in connection with the issuance of the Securities.
(p) The Offerors shall notify you immediatelywill not, and confirm such notice prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in writing:
(i) when the Registration Statementordinary course of business, or any post-effective amendment transaction with a related party which is required to the Registration Statement, has become effective, or when be disclosed in the Prospectus or any supplement pursuant to Item 404 of Regulation S-K of the Prospectus or any amended Prospectus has been filed;Commission, except as contemplated by the Prospectus.
(iiq) Except pursuant to this Agreement or with the Underwriter's written consent, for a period of the receipt of any comments or requests 180 days from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness effective date of the Registration Statement, preventing the Offerors will not, and the Corporation has provided agreements executed by each of its executive officers and directors, providing that for a period of 180 days from the Closing Time, such person or suspending entity will not offer for sale, sell or grant any options (other than pursuant to existing employee benefit plans and agreements, other existing compensation agreements and existing stock options), rights or warrants with respect to any securities of the use Offerors, securities convertible into Common Stock or any other capital stock or other security of any Preliminary Prospectus the Corporation or the ProspectusTrust, or suspending the qualification otherwise dispose of directly or indirectly, any Securities of the Designated Preferred Securities for offering Offeror, any shares of Common Stock or sale in any jurisdiction such other securities or capital stock of the Corporation or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possibleTrust.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated
Appears in 1 contract
Sources: Underwriting Agreement (Metropolitan Capital Trust Ii)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.. 18NEXT PAGE
(b) The Offerors shall notify you immediatelypromptly, and and, if requested by you, shall confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus or any documents incorporated by reference therein;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number 19NEXT PAGE of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities and the Shares have been qualified as above. The Offerors will notify you immediately promptly of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or any threat thereof of which they are aware in any jurisdiction.
(f) The Offerors shall use their best efforts to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) For one year from the Effective Date, the Offerors shall furnish to the Representative copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or ___________________________ or other self- regulatory organization. 20NEXT PAGE (j) (i) Without the prior written consent of the Representative, which consent shall not be unreasonably withheld, for a period of 30 days from the date of this Agreement, the Offerors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Designated Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, except for the registration of the Designated Preferred Securities and the sales to the Underwriters pursuant to this Agreement.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become listed on ___________________________, or in lieu thereof a national securities exchange, and to remain so quoted, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on ________________________ or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under the 1934 Act.
(l) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(m) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the offering of the Designated Preferred Securities without your prior consent, which consent shall not be unreasonably withheld. 21NEXT PAGE
(o) The Offerors shall comply with all registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
Appears in 1 contract
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-post- effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement or the Prospectus;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedthe
Appears in 1 contract
Sources: Underwriting Agreement (First America Capital Trust)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with In further consideration of the agreements of the Underwriters herein contained, the Offerors covenant as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement As soon as practicable, and in any amendments thereto, if not effective at event within the time of execution of this Agreementprescribed by Rule 424 under the Act, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus orwith the Commission; as soon as either Offeror is advised thereof, if required to advise the Representative and confirm the advice in writing of any request made by Rule 430A, a post-effective amendment the Commission for amendments to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) information with respect thereto or of the issuance by the Commission or any state or other regulatory body entry of any a stop order or other order suspending the effectiveness of the Registration Statement, preventing Statement or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution initiation or threat of institution of any proceedings for any of that purpose and, if such purposes. The Offerors shall use their best efforts to prevent the issuance of any such a stop order or of any other such order and if any such order is issuedshould be entered by the Commission, to cause such order make every reasonable effort to be withdrawn obtain the prompt lifting or lifted as soon as possibleremoval thereof.
(cb) The Offerors shall furnish To deliver to the Underwriters, from time to time without charge, as soon as availablepracticable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus, as many copies of the Prospectus (as supplemented or amended if the Offerors shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Preferred Securities) as the Underwriters Representative may reasonably request request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(ic) To furnish to the registration statement Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as originally initially filed with the Commission and of all amendments theretothereto (exclusive of exhibits), in executed formother than amendments relating solely to securities other than the Preferred Securities and, including upon request, to furnish to the Representative sufficient plain copies thereof (exclusive of exhibits, whether filed before or after ) for distribution to the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements theretoother Underwriters.
(d) During For such period of time (not exceeding nine months) after the time when date hereof as they are required by law to deliver a prospectus is required to be delivered under the 1933 Actprospectus, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If if any event shall occur have occurred as a result of which it is necessary to amend or supplement the Prospectus in order to correct an make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to include a state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, therein not misleading, or if forthwith to prepare and furnish, at the expense of the Offerors, to the Underwriters and to dealers (whose names and addresses will be furnished to the Offerors by the Representative) to whom Preferred Securities may have been sold by the Representative for the accounts of the Underwriters and, upon request, to any reason it is necessary at any time other dealers making such request, copies of such amendments to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject or supplements to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingProspectus.
(e) The Offerors shall cooperate with you As soon as practicable, the Company will make generally available to its security holders and counsel for to the Underwriters in order an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use their best efforts to qualify the Designated Preferred Securities for offering offer and sale under the securities or "blue sky sky" laws of such jurisdictions as you the Representative may reasonably request designate within six months after the date hereof and shall continue such qualifications itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in effect so long as may be advisable for distribution of connection therewith in an amount not exceeding $3,500 in the Designated Preferred Securities; aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Offerors shall not be required to qualify as foreign corporations or to do business as a foreign corporation or file a general consent consents to service of process in or to file annual reports or to comply with any jurisdiction other requirements deemed by the Offerors to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Preferred Securities by the respective Underwriters) in connection with the foregoing. The issuance and delivery of the Preferred Securities, except that the Offerors shall file such statements and reports as may be required by to pay the laws fees and disbursements (other than disbursements referred to in paragraph (f) of each jurisdiction this Section 4) of Dewey Ballantine LLP, counsel to the Under▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ the events provided in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, paragraph (h) of this Section 4 and confirm in writingparagraph (a) of Section 7, the suspension of qualification of the Designated Preferred Securities or threat thereof Underwriters hereby agreeing to pay such fees and disbursements in any jurisdictionother event.
(fh) The If the Underwriters shall not take up and pay for the Preferred Securities due to the failure of the Offerors to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall make generally available be terminated in accordance with the provisions of Section 8 or 9 hereof, to pay the fees and disbursements of Dewey Ballantine LLP, counsel to the Under▇▇▇▇▇▇▇, ▇▇▇, ▇▇ the Underwriters shall not take up and pay for the Preferred Securities due to the failure of the Offerors to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their security holders reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the manner financing contemplated by Rule 158 this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the 1933 Act Regulations Preferred Securities ceases, as determined by the Representative in its sole discretion, and furnish to you as soon as practicable, but in any event not later than 16 months (ii) the date which is 30 days after the Effective DateTime of Purchase, a consolidatedthe Offerors agree not to offer, sell, contract to sell or otherwise dispose of any Preferred Securities of the Trust or any substantially similar securities of the Trust without the consent of the Representative.
Appears in 1 contract
Sources: Underwriting Agreement (Southwestern Electric Power Co)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any the Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred SecuritiesSecurities and the Shares, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedthe
Appears in 1 contract
Sources: Underwriting Agreement (Southside Capital Trust Ii)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the several Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly after execution as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, then the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Underwriters of such timely filing.
(b) The Offerors shall notify you the Underwriters immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filedfiled with the Commission;
(ii) of the receipt of any comments or requests from the CommissionCommission relating to the Registration Statement and any 1934 Act documents incorporated by reference therein;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus, the Prospectus or the Prospectus 1934 Act documents incorporated therein by reference or for additional informationinformation relating thereto; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Except as required by applicable law as evidenced by a written opinion of counsel relating thereto, the Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you the Underwriters shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you the Underwriters or counsel for to the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's Underwriters' reasonable opinion or in the reasonable written opinion of counsel to the Company's counsel Underwriters to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to youthe Underwriters, such number of copies as you the Underwriters may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you the Underwriters and counsel for to the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to youthe Underwriters, such number of copies as you the Underwriters may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you the Underwriters and counsel for to the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you the Underwriters and counsel for to the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you the Underwriters may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you the Underwriters immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you the Underwriters as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish to the Underwriters copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the commission) or with any national securities exchange or the Nasdaq National Market.
(i) For a period of 180 days from the Effective Date, the Offerors, the Bank and their executive officers and directors shall not, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities other than pursuant to this Agreement, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company that are substantially similar to the Preferred Securities, including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, without the Representative's prior written consent.
(j) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof a national securities exchange, and to remain so quoted for at least five years from the Effective Date or for such shorter period as may be specified in a written consent of the Underwriters, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company will use its best efforts to have the Debentures promptly listed on the Nasdaq National Market or other organization on which the Designated Preferred Securities are then listed, and to have the Debentures promptly registered under Section 12 of the Exchange Act.
(k) The Offerors shall not, for a period of 180 days after the date hereof, without the Representative's prior written consent, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities; provided, however, that the foregoing shall not prevent an employee from delivering the Company's securities in payment of the exercise price of options issued under the Company's 1997 Employees and Directors Stock Option Plan.
(l) The Offerors shall not take, directly or indirectly, any action designed to result in or which has constituted or which might cause or result in stabilization or manipulation of the price of any security of the Offerors to facilitate the sale or resale of the Designated Preferred Securities and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(m) Prior to the Closing Date, the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities (the "Offering") without the Representative's prior written consent, which will not be unreasonably withheld.
Appears in 1 contract
Certain Covenants of the Offerors. The Each of the Offerors jointly and --------------------------------- severally covenant with the several Underwriters as follows:
(a) The Offerors shall use their best efforts to cause To notify the Registration Statement Underwriters promptly, and confirm the notice in writing, (i) of any amendments thereto, if not effective at request by the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective Commission for any amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
, and (ivii) of the issuance institution by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness proceedings in respect of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification initiation of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall that purpose, and to use their its best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted obtain as soon as possible.possible its lifting, if issued;
(b) To file the Prospectus with the Commission pursuant to Rule 424(b) under the 1933 Act not later than the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the 1933 Act; to advise you promptly of any such filing; and to advise you promptly of any proposal to file or prepare
(i) any amendment to the Registration Statement (including any post- effective amendment), (ii) any amendment or supplement to the Prospectus (including any revised prospectus which the Offerors propose for use by the Underwriters in connection with the offering of the Preferred Securities which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), or (iii) any document that would as a result thereof be incorporated by reference in the Prospectus whether pursuant to the 1933 Act, the 1934 Act or otherwise; and will furnish the Underwriters with copies of any such amendment, supplement or other document a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment, supplement or other document or use any such prospectus to which the Underwriters or counsel for the Underwriters shall reasonably object in writing;
(c) The Offerors shall furnish to To use their best efforts, in cooperation with the Underwriters, from time to time without charge, as soon as available, as many copies qualify the Preferred Securities (and the Guarantee) and the Junior Subordinated Debentures for offer and sale under the securities or blue sky laws of such states and the other jurisdictions of the United States as the Underwriters may reasonably request designate, to continue such qualifications in effect so long as required for the distribution of the Preferred Securities and to reimburse you for any expenses (iincluding filing fees and fees and disbursements of counsel) paid by you or on your behalf to qualify the registration statement Preferred Securities for offer and sale, to continue such qualification, to determine the eligibility of the Preferred Securities for investment and to print the memoranda relating thereto; provided that none of the Offerors shall be required to qualify as a foreign corporation in any jurisdiction in which it is not so qualified, to consent to service of process in any jurisdiction other than with respect to claims arising out of the offering or sale of the Preferred Securities, or to meet any other requirement in connection with this paragraph (c) deemed by such Offeror to be unduly burdensome; and the Company will advise ▇▇▇▇▇▇▇ ▇▇▇▇▇ promptly of any order or communication of any public authority known to the Company suspending or threatening to suspend the qualification of the Preferred Securities for sale, or the eligibility of the Preferred Securities for purchase by such institutions, in any jurisdiction;
(d) Promptly to deliver to you two signed copies of the Registration Statement as originally filed and of all amendments thereto, in executed formthereto heretofore or hereafter filed, including exhibitsconformed copies of all exhibits except those incorporated by reference, whether filed before or after and such number of unsigned copies of the Registration Statement becomes effective(but excluding the exhibits), (ii) all exhibits each related preliminary prospectus, the Prospectus, and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all any amendments and supplements thereto, and (v) as the Prospectus, and all amendments and supplements thereto.Underwriters may reasonably request;
(de) During Promptly to furnish to each Underwriter, from time to time during the time period when a prospectus the Prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, such number of copies of the Prospectus (as you amended or supplemented) as such Underwriter may reasonably request of an amendment or amendments of, or a supplement or supplements to, for the Registration Statement purposes contemplated by the 1933 Act or the Prospectus1933 Act Regulations;
(f) If, as at any time when the case may Prospectus relating to the Preferred Securities is required to be (delivered under the 1933 Act in form and substance reasonably satisfactory to you and counsel for connection with sales of the Underwriters). If Preferred Securities, any event shall occur occurs as a result of which it is necessary to amend or supplement the Prospectus to correct as then amended or supplemented would include an untrue statement of a material fact or omit to include a state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend the Registration Statement or amend or supplement the Prospectus to comply with the 1933 Act and or the 1933 Act Regulations, to advise the Offerors shallUnderwriters of such event or necessity, as the case may be, and, promptly upon request made by the Underwriters, to prepare and file with the Commission subject to the second sentence of this subsection paragraph (d), forthwith amend b) above an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance; provided that the Prospectus by expense of -------- preparing and filing with the Commission, and furnishing to you, any such number of copies as you may reasonably request of an amendment or amendments ofsupplement (i) which is necessary in connection with such a delivery of the Prospectus more than nine months after the date of this Agreement or (ii) which relates solely to the activities of any Underwriter shall be borne by the Underwriter or Underwriters or the dealer or dealers requiring the same; and provided further that the Underwriters shall, upon inquiry by the Company, advise the Company whether or a supplement not any Underwriter or supplements todealer which shall have been selected by you retains any unsold Preferred Securities and, for the purposes of this paragraph (f), the Prospectus (in form and substance satisfactory Company shall be entitled to you and counsel for assume that the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities has been completed when it is advised by you that no Underwriter or such dealer retains any Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business ;
(g) As soon as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writingpracticable, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall Trust will make generally available to their its security holders in an earnings statement of the manner contemplated by Company covering a period of at least twelve months beginning after the "effective date of the registration statement" within the meaning of Rule 158 under the 1933 Act which will satisfy the provisions of Section 11(a) of the 1933 Act Regulations Act;
(h) The Offerors will use best efforts to effect the listing of the Preferred Securities on the New York Stock Exchange; if the Preferred Securities are exchanged for Junior Subordinated Debentures, the Company will use its best efforts to effect the listing of the Junior Subordinated Debentures on the exchange on which the Preferred Securities were then listed;
(i) During a period of 30 days from the date of this Agreement, neither the Trust nor the Company will, without the Underwriters' prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any Preferred Securities, any security convertible into or exchangeable into or exercisable for Preferred Securities or the Junior Subordinated Debentures or any debt securities substantially similar to the Junior Subordinated Debentures or equity securities substantially similar to the Preferred Securities (except for the Junior Subordinated Debentures and furnish the Preferred Securities issued pursuant to you as soon as practicable, but this Agreement); and
(j) The Trust will apply the net proceeds from the sale of the Preferred Securities for the purposes set forth in any event not later than 16 months after the Effective Date, a consolidatedProspectus.
Appears in 1 contract
Sources: Underwriting Agreement (Pennsylvania Power & Light Co /Pa)
Certain Covenants of the Offerors. The Offerors jointly and --------------------------------- severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the Registration Statement and any amendments thereto, if not effective at the time of execution of this Agreement, to become effective as promptly as possible. If the Registration Statement has become or becomes effective pursuant to Rule 430A and information has been omitted therefrom in reliance on Rule 430A, then, the Offerors will prepare and file in accordance with Rule 430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative Representatives of such timely filing.
(b) The Offerors shall notify you immediately, and confirm such notice in writing:
(i) when the Registration Statement, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any the Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any the Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each the Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when a prospectus is required to be delivered under the 1933 Act, the Offerors shall comply to the best of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Designated Preferred Securities as contemplated herein and in the Trust Agreement and the Prospectus. The Offerors shall not file any amendment to the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any the Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter Underwriters shall reasonably object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion of the Company's counsel counsel, to amend or supplement the Registration Statement or the Prospectus in connection with the distribution of the Designated Preferred Securities, the Offerors shall forthwith at their cost and expense amend or supplement the Registration Statement or the Prospectus, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does not reasonably object), and furnishing to you, you such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith at their cost and expense amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdiction.
(f) The Offerors shall file the DTC Letter of Representations and any other documents required to be filed by the Offerors in connection therewith in order to permit the Preferred Securities to be eligible for clearance and settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidatedconsolidated earnings statement of the Offerors in reasonable detail, covering a period of at least 12 consecutive months beginning after the Effective Date, conforming with the requirements of Section 11(a) of the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the Designated Preferred Securities to be sold by the Trust hereunder in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall furnish to the Representatives copies of all reports and communications (financial or otherwise) furnished by the Offerors to the holders of the Designated Preferred Securities as a class, copies of all reports and financial statements filed with or furnished to the Commission (other than portions for which confidential treatment has been obtained from the Commission) or with any national securities exchange or the Nasdaq National Market or other self-regulatory organization and such other documents, reports and information concerning the business and financial conditions of the Offerors as the Representatives may reasonably request, other than such documents, reports and information for which the Offerors has the legal obligation not to reveal to the Representatives.
(j) For a period of 90 days from the Effective Date, the Offerors shall not, without the Representatives' prior written consent, directly or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any Designated Preferred Securities, any other beneficial interests in the assets of the Trust or any securities of the Trust or the Company or any other financing subsidiary organized by the Company that are substantially similar to the Designated Preferred Securities (other than the Common Securities of the Trust to be issued to the Company), including any guarantee of such beneficial interests or substantially similar securities, or securities convertible into or exchangeable for or that represent the right to receive any such beneficial interest or substantially similar securities, except for the registration of the Designated Preferred Securities and the sales to the Underwriters pursuant to this Agreement.
(k) The Offerors shall use their best efforts to cause the Designated Preferred Securities to become quoted on the Nasdaq National Market, or in lieu thereof on a national securities exchange, and to remain so quoted, provided this shall not prevent the Company from redeeming the Designated Preferred Securities pursuant to the terms of the Trust Agreement. If the Designated Preferred Securities are exchanged for Debentures, the Company shall use its best efforts to have the Debentures promptly listed on a national securities exchange or include them in a comparable quotation system on which the Designated Preferred Securities are then listed or included, and to have the Debentures promptly registered under the 1934 Act.
(l) The Offerors will provide you with copies of any correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Designated Preferred Securities under the 1933 Act.
(m) Subsequent to the date of this Agreement and through the date which is the later of (i) the day following the date on which the Underwriters' option to purchase the Option Preferred Securities shall expire or (ii) the day following the Option Closing Date with respect to any Option Preferred Securities that the Underwriters shall elect to purchase, except as described in or contemplated by the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any action (or refrain from taking any action) which will result in the Offerors or the Subsidiaries incurring any material liability or obligation, direct or contingent, or enter into any material transaction, except in the ordinary course of business, or take or refrain from taking any action which will cause or result in any material adverse change in the financial position, capital stock, or any material increase in long-term debt, obligations under capital leases or short-term borrowings of the Offerors and the Subsidiaries on a consolidated basis.
(n) Except as described in the Prospectus, the Offerors shall not, for a period of 180 days after the date hereof, without the prior written consent of the Representatives, purchase, redeem or call for redemption, or prepay or give notice of prepayment (or announce any redemption or call for redemption, or any repayment or notice of prepayment) of the Offerors' securities; provided, however, that this shall not apply to repurchases by the Company of its common stock.
(o) The Offerors shall not take, directly or indirectly, any action designed to result in or which constitutes or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Offerors in connection with the sale or resale of the Designated Preferred Securities in violation of the Commission's rules and regulations, including, but not limited to, Regulation M, and the Offerors are not aware of any such action taken or to be taken by any affiliate of the Offerors.
(p) Prior to the Closing Date (and, if applicable, the Option Closing Date), the Offerors will not issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offerors, the Subsidiaries or the offering of the Designated Preferred Securities which you shall not previously have been provided a copy a reasonable time prior to the release thereof or provided reasonable notice thereof and you shall not have reasonably objected thereof.
(q) The Offerors shall comply in all material respects with all registration, filing and reporting requirements of the 1934 Act for so long as the Preferred Securities or the Debentures shall remain outstanding.
Appears in 1 contract
Sources: Underwriting Agreement (Independent Bank Corp /Mi/)
Certain Covenants of the Offerors. The Each of the Offerors covenants jointly and --------------------------------- severally covenant with the Underwriters Underwriter as follows:
(a) The Offerors shall will use their best efforts to cause the Registration Statement to become effective and will notify the Underwriter immediately, and confirm the notice in writing, (i) when the Registration Statement, or any amendments post-effective amendment to the Registration Statement, shall have become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request of the Commission to amend the Registration Statement or amend or supplement the Prospectus or for additional information and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Preferred Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes. The Offerors will use every reasonable effort to prevent the issuance of any such stop order or of any order preventing or suspending such use and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will not at any time file or make any amendment to the Registration Statement or, if the Offerors have elected to rely upon Rule 430A of the 1933 Act Regulations ("Rule 430A"), any amendment or supplement to the Prospectus (including documents incorporated by reference into the Registration Statement or the Prospectus) of which the Underwriter shall not previously have been advised and furnished a copy, or to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Offerors have furnished or will furnish to the Underwriter as many signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto, whether filed before or after the Registration Statement becomes effective, copies of all exhibits and documents filed therewith (including documents incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3 under the ▇▇▇▇ ▇▇▇) and signed copies of all consents and certificates of experts as the Underwriter may reasonably request.
(d) The Offerors will deliver or cause to be delivered to the Underwriter, without charge, from time to time until the effective date of the Registration Statement, as many copies of each preliminary prospectus as the Underwriter may reasonably request, and the Offerors hereby consent to the use of such copies for purposes permitted by the 1933 Act. The Offerors will deliver or cause to be delivered to the Underwriter, without charge, as soon as the Registration Statement shall have become effective (or, if the Offerors have elected to rely upon Rule 430A, as soon as practicable after the Price Determination Agreement has been executed and delivered) and thereafter from time to time as requested by the Underwriter during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as supplemented or amended) as the Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Preferred Securities as contemplated in this Agreement and in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Preferred Securities, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter or counsel for the Offerors, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not effective include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading, in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of execution of this Agreementeither such counsel, at any such time to become effective as promptly as possible. If amend the Registration Statement has become or becomes amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with the Underwriter, to qualify the Preferred Securities and the Debentures for offering and sale under the applicable securities laws of such states and other jurisdictions as the Underwriter may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Preferred Securities have been qualified as above provided.
(g) The Company will make generally available (within the meaning of Rule 158 of the 1933 Act Regulations ("Rule 158") to the holders of the Preferred Securities and the Underwriter as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement of the Company and its subsidiaries (in form complying with the provisions of Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but not later than the first day of the Company's fiscal quarter next following such effective date.
(h) The Trust shall apply the entire proceeds from its sale of the Preferred Securities, combined with the entire proceeds from the issuance by the Trust to the Company of the Trust's Common Securities, to purchase an equivalent amount of Debentures from the Company. The Company and the Bank will use the net proceeds received by them from the sale of the Debentures in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) The Offerors, during the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of Preferred Securities, will file promptly all documents required to be filed with the Commission pursuant to Rule 430A Section 13 or 14 of the 1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will furnish to the Underwriter copies of all annual reports, quarterly reports and current reports filed by the Company with the Commission and such other documents, reports, proxy statements and information has as shall be furnished by the Company to its stockholders generally.
(k) The Company will provide to the holders of the Preferred Securities annual reports containing financial statements audited by the Company's independent auditors and, upon written request, the Company's annual reports on Form 10-K.
(l) The Offerors will file with the NASD all documents and notices required by the NASD of companies that have issued securities that are traded in the Nasdaq Stock Market.
(m) The Company shall cause to be prepared by its counsel one or more "blue sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering of the Preferred Securities as contemplated by the Prospectus and a copy of each Blue Sky Survey or surveys shall be delivered to each of the Company and the Underwriter.
(n) If, at the time the Registration Statement becomes effective, any information shall have been omitted therefrom in reliance on upon Rule 430A, then, then the Offerors will prepare prepare, and file or transmit for filing with the Commission in accordance with Rule 430A and Rule 424(b) ), copies of the an amended Prospectus or, if required by Rule 430A, a post-effective amendment to the Registration Statement (including the an amended Prospectus) containing all information so omitted and will provide evidence satisfactory to the Representative of such timely filingomitted.
(bo) The Company will, at its expense, subsequent to the issuance of the Preferred Securities, prepare and distribute to the Underwriter and counsel to the Underwriter a bound volume containing copies of the documents used in connection with the issuance of the Preferred Securities.
(p) The Offerors shall notify you immediatelywill not, and confirm such notice prior to the Option Closing Date or thirty (30) days after the date of this Agreement, whichever occurs first, incur any material liability or obligation, direct or contingent, or enter into any material transaction, other than in writing:
(i) when the Registration Statementordinary course of business, or any post-effective amendment to the Registration Statement, has become effective, or when the Prospectus or any supplement to the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from the Commission;
(iii) of any request of the Commission to amend or supplement the Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other regulatory body of any stop order or other order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or suspending the qualification of any of the Designated Preferred Securities for offering or sale in any jurisdiction or the institution or threat of institution of any proceedings for any of such purposes. The Offerors shall use their best efforts to prevent the issuance of any such stop order or of any other such order and if any such order is issued, to cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time without charge, as soon as available, as many copies as the Underwriters may reasonably request of (i) the registration statement as originally filed and of all amendments thereto, in executed form, including exhibits, whether filed before or after the Registration Statement becomes effective, (ii) all exhibits and documents incorporated therein or filed therewith, (iii) all consents and certificates of experts in executed form, (iv) each Preliminary Prospectus and all amendments and supplements thereto, and (v) the Prospectus, and all amendments and supplements thereto.
(d) During the time when transaction with a prospectus related party which is required to be delivered under disclosed in the 1933 Act, the Offerors shall comply Prospectus pursuant to the best Item 404 of their ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion Regulation S-K of the distribution Commission, except as contemplated by the Prospectus.
(q) During a period of thirty (30) days from the date of the Designated Preferred Securities as contemplated herein and in Prospectus, neither the Trust Agreement and nor the Prospectus. The Offerors shall not file any amendment to Company will, without the registration statement as originally filed or to the Registration Statement and shall not file any amendment thereto or make any amendment or supplement to any Preliminary Prospectus or to the Prospectus of which you shall not previously have been advised in writing and provided a copy a reasonable time prior to the proposed filings thereof or to which you or counsel for the Underwriter shall object. If it is necessary, in the Company's reasonable opinion or in the reasonable opinion written consent of the Company's counsel Underwriter, directly or indirectly, offer, sell, offer to amend sell, or supplement the Registration Statement or the Prospectus in connection with the distribution otherwise dispose of the Designated any Preferred Securities, any other beneficial interests in the Offerors shall forthwith amend assets of the Trust, or supplement any preferred securities or other securities of the Registration Statement Trust or the ProspectusCompany that are substantially similar to the Preferred Securities, as the case may be, by preparing and filing with the Commission (provided the Underwriters or counsel for the Underwriters does including any guarantee of such securities. The foregoing sentence shall not reasonably object), and furnishing apply to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Registration Statement or the Prospectus, as the case may be (in form and substance reasonably satisfactory to you and counsel for the Underwriters). If any event shall occur as a result of which it is necessary to amend or supplement the Prospectus to correct an untrue statement of a material fact or to include a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if for any reason it is necessary at any time to amend or supplement the Prospectus to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the second sentence of this subsection (d), forthwith amend or supplement the Prospectus by preparing and filing with the Commission, and furnishing to you, such number of copies as you may reasonably request of an amendment or amendments of, or a supplement or supplements to, the Prospectus (in form and substance satisfactory to you and counsel for the Underwriters) so that, as so amended or supplemented, the Prospectus shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the Underwriters in order to qualify the Designated Preferred Securities for offering and sale under the securities or blue sky laws of such jurisdictions as you may reasonably request and shall continue such qualifications in effect so long as may to be advisable for distribution of the Designated Preferred Securities; provided, however, that the Offerors shall not be required to qualify to do business as a foreign corporation or file a general consent to service of process in any jurisdiction in connection with the foregoing. The Offerors shall file such statements and reports as may be required by the laws of each jurisdiction in which the Designated Preferred Securities have been qualified as above. The Offerors will notify you immediately of, and confirm in writing, the suspension of qualification of the Designated Preferred Securities or threat thereof in any jurisdictionsold hereunder.
(f) The Offerors shall make generally available to their security holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and furnish to you as soon as practicable, but in any event not later than 16 months after the Effective Date, a consolidated
Appears in 1 contract
Sources: Underwriting Agreement (Southern Community Financial Corp)