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This excerpt taken from the CHK 8-K filed Feb 17, 2009. Closing Date,” against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities.
4. Offering by
Underwriters. It is understood that the Underwriters propose
to offer the Offered Securities for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the
Company. The Company agrees with the Underwriters
that:
(a) The
Company will file each Statutory Prospectus with the Commission pursuant to and
in accordance with Rule 424(b)(2) (or, if applicable and if consented to by
the Underwriters, subparagraph (5), such consent not to be unreasonably withheld
or delayed) not later than the second business day following the execution and
delivery of this Agreement. The Company will also prepare a final
term sheet, containing solely the terms of the Offered Securities, in the form
set out in Schedule C, and file such term sheet pursuant to Rule 433(d)
under the Act within the time required by such Rule and file promptly all other
material required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act.
(b) The
Company will advise the Underwriters promptly of any proposal to amend or
supplement the Registration Statement or any Statutory Prospectus and will not
undertake any such amendment or supplement if the Underwriters reasonably object
in writing thereto; and the Company will also advise the Underwriters promptly
of the filing of any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at
any time when a prospectus relating to the Offered Securities is required to be
delivered (whether physically or through compliance with Rule 172 under the Act)
in connection with sales by the Underwriters or any dealer, any event occurs as
a result of which the Prospectus, as then amended or supplemented would include
an untrue statement of a material fact or omit to 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 it is necessary at any time to
amend the Registration Statement or the Prospectus to comply with the Act, the
Company promptly will notify the Underwriters of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Underwriters’ consent to,
nor the Underwriters’ delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon
as practicable, but not later than 16 months, after the date of this
Agreement, the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the registration statement relating
to the Offered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Company’s most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of this Agreement, which will satisfy the provisions of Section 11(a)
of the Act.
(e) The
Company will furnish to the Underwriters copies of the Registration Statement in
the form it became effective (including all exhibits) and of all amendments
thereto, any related preliminary prospectus, any related preliminary prospectus
supplement, and, so long as a prospectus relating to the Offered Securities is
(or but for the exemption in Rule 172 would be required to be) delivered under
the Act in connection with sales by the Underwriters or any dealer, the
Prospectus and all amendments and supplements to such documents, in each case in
such quantities as the Underwriters request. The Prospectus shall be
so furnished on or prior to 3:00 p.m., New York time, on the business day
following the execution and delivery of this Agreement. All other
documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the Underwriters all such
documents.
(f) The
Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Underwriters designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) The
Company will pay all expenses incidental to the performance of its obligations
under this Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Underwriters designate and the printing of memoranda relating thereto, and for
expenses incurred in distributing preliminary prospectuses, preliminary
prospectus supplements and the Prospectus (including any amendments and
supplements thereto) to the Underwriters and for expenses incurred for
preparing, printing and distributing any Issuer Free Writing Prospectuses to
investors or prospective investors; provided that the
Underwriters (acting collectively) will reimburse the Company for up to $150,000
of expenses incurred by the Company in the performance of its obligations under
this Agreement.
(h) For a
period of 60 days after the date of this Agreement, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any U.S. dollar-denominated debt securities registered under the
Securities Act or eligible for trading pursuant to Rule 144A, issued or
guaranteed by the Company or its subsidiaries and having a maturity of more than
one year from the date of issue, without the prior written consent of Banc of
America Securities LLC; provided that the
Company may offer and sell one or more series of senior notes, the proceeds of
which are used to repurchase or redeem outstanding senior notes of the
Company.
6. Free Writing Prospectuses. The
Company represents and agrees that (other than the final term sheet prepared and
filed pursuant to Section 5(a) hereto), unless it obtains the prior consent
of the Underwriters, and each Underwriter represents and agrees that (other than
one or more term sheets relating to the Offered Securities containing customary
information and conveyed to purchasers of Offered Securities), unless it obtains
the prior consent of the Company and the Underwriters, it has not made and will
not make any offer relating to the Offered Securities that would constitute an
Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the
Company and the Underwriters is hereinafter referred to as a “ This excerpt taken from the CHK 8-K filed Feb 3, 2009. Closing Date,” against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities.
4. Offering by
Underwriters. It is understood that the Underwriters propose
to offer the Offered Securities for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the
Company. The Company agrees with the Underwriters
that:
(a) The
Company will file each Statutory Prospectus with the Commission pursuant to and
in accordance with Rule 424(b)(2) (or, if applicable and if consented to by
the Representatives, subparagraph (5), such consent not to be unreasonably
withheld or delayed) not later than the second business day following the
execution and delivery of this Agreement. The Company will also
prepare a final term sheet, containing solely the terms of the Offered
Securities, in the form set out in Schedule C, and file such term sheet
pursuant to Rule 433(d) under the Act within the time required by such Rule and
file promptly all other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act.
(b) The
Company will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or any Statutory Prospectus and will not
undertake any such amendment or supplement if the Representatives reasonably
object in writing thereto; and the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at
any time when a prospectus relating to the Offered Securities is required to be
delivered (whether physically or through compliance with Rule 172 under the Act)
in connection with sales by the Underwriters or any dealer, any event occurs as
a result of which the Prospectus, as then amended or supplemented would include
an untrue statement of a material fact or omit to 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 it is necessary at any time to
amend the Registration Statement or the Prospectus to comply with the Act, the
Company promptly will notify the Representatives of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Representatives’ consent to,
nor the Underwriters’ delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon
as practicable, but not later than 16 months, after the date of this
Agreement, the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the registration statement relating
to the Offered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Company’s most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of this Agreement, which will satisfy the provisions of Section 11(a)
of the Act.
(e) The
Company will furnish to the Representatives copies of the Registration Statement
in the form it became effective (including all exhibits) and of all amendments
thereto, any related preliminary prospectus, any related preliminary prospectus
supplement, and, so long as a prospectus relating to the Offered Securities is
(or but for the exemption in Rule 172 would be required to be) delivered under
the Act in connection with sales by the Underwriters or any dealer, the
Prospectus and all amendments and supplements to such documents, in each case in
such quantities as the Representatives request. The Prospectus shall
be so furnished on or prior to 3:00 p.m., New York time, on the business day
following the execution and delivery of this Agreement. All other
documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the Underwriters all such
documents.
(f) The
Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) The
Company will pay all expenses incidental to the performance of its obligations
under this Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives designate and the printing of memoranda relating thereto, and
for expenses incurred in distributing preliminary prospectuses, preliminary
prospectus supplements and the Prospectus (including any amendments and
supplements thereto) to the Underwriters and for expenses incurred for
preparing, printing and distributing any Issuer Free Writing Prospectuses to
investors or prospective investors; provided that the
Underwriters (acting collectively) will reimburse the Company for up to $150,000
of expenses incurred by the Company in the performance of its obligations under
this Agreement.
(h) For a
period of 60 days after the date of this Agreement, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any U.S. dollar-denominated debt securities registered under the
Securities Act or eligible for trading pursuant to Rule 144A, issued or
guaranteed by the Company or its subsidiaries and having a maturity of more than
one year from the date of issue, without the prior written consent of Deutsche
Bank Securities Inc.; provided that the
Company may offer and sell one or more series of senior notes, the proceeds of
which are used to repurchase or redeem outstanding senior notes of the
Company.
6. Free Writing Prospectuses. The
Company represents and agrees that (other than the final term sheet prepared and
filed pursuant to Section 5(a) hereto), unless it obtains the prior consent
of the Representatives, and each Underwriter represents and agrees that (other
than one or more term sheets relating to the Offered Securities containing
customary information and conveyed to purchasers of Offered Securities), unless
it obtains the prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Offered Securities that would
constitute an Issuer Free Writing Prospectus, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405, required to be filed
with the Commission. Any such free writing prospectus consented to by
the Company and the Representatives is hereinafter referred to as a “ This excerpt taken from the CHK 8-K filed Jul 15, 2008. Closing Date”), shall
be determined by the Representatives but shall be not later than five full
business days after written notice of election to purchase Optional Securities
is given. The Company will deliver the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters against payment of the purchase price therefor in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Representatives drawn to the order of the
Company, at the above office of Cravath, Swaine & Moore
LLP. The certificates for the Optional Securities being purchased on
each Optional Closing Date will be in definitive form, in such denominations and
registered in such names as the Representatives request upon reasonable notice
prior to such Optional Closing Date and will be made available for checking and
packaging at the above office of Cravath, Swaine & Moore LLP at a
reasonable time in advance of such Optional Closing Date.
4. Offering by
Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the
Company. The Company agrees with the several Underwriters
that:
(a) The
Company will file each Statutory Prospectus with the Commission pursuant to and
in accordance with Rule 424(b)(2) (or, if applicable and if consented to by
the Representatives, subparagraph (5), such consent not to be unreasonably
withheld or delayed) not later than the second business day following the
execution and delivery of this Agreement.
(b) The
Company will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or any Statutory Prospectus and will not
undertake any such amendment or supplement if the Representatives reasonably
object in writing thereto; and the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at
any time when a prospectus relating to the Offered Securities is required to be
delivered (whether physically or through compliance with Rule 172 under the
Act) in connection with sales by the Underwriters or any dealer, any event
occurs as a result of which the Prospectus, as then amended or supplemented
would include an untrue statement of a material fact or omit to 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 it is necessary
at any time to amend the Registration Statement or the Prospectus to comply with
the Act, the Company promptly will notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the
Representatives’ consent to, nor the Underwriters’ delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6 hereof.
(d) As soon
as practicable, but not later than 16 months, after the date of this
Agreement, the Company will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the registration statement relating
to the Offered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Company’s most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of this Agreement, which will satisfy the provisions of Section 11(a)
of the Act.
(e) The
Company will furnish to the Representatives copies of the Registration Statement
in the form it became effective (including all exhibits) and of all amendments
thereto, any related preliminary prospectus, any related preliminary prospectus
supplement, and, so long as a prospectus relating to the Offered Securities is
(or but for the exemption in Rule 172 would be required to be) delivered under
the Act in connection with sales by the Underwriters or any dealer, the
Prospectus and all amendments and supplements to such documents, in each case in
such quantities as the Representatives request. The Prospectus shall
be so furnished on or prior to 3:00 p.m., New York time, on the
business day following the execution and delivery of this
Agreement. All other documents shall be so furnished as soon as
available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The
Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) The
Company will pay all expenses incidental to the performance of its obligations
under this Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives designate and the printing of memoranda relating thereto, and
for expenses incurred in distributing preliminary prospectuses, preliminary
prospectus supplements and the Prospectus (including any amendments and
supplements thereto) to the Underwriters and for expenses incurred for
preparing, printing and distributing any Issuer Free Writing Prospectuses to
investors or prospective investors; provided that on the
First Closing Date, the Underwriters (acting collectively) will reimburse the
Company for up to $150,000 of expenses incurred by the Company in the
performance of its obligations under this Agreement.
(h) For a
period of 60 days after the date of this Agreement, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the Act
(other than a customary universal shelf registration statement) relating to, any
additional shares of its common stock or securities convertible into or
exchangeable or exercisable for any shares of its common stock, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of Lehman Brothers Inc.
and UBS Securities LLC, except (i) grants of employee and director stock
options or restricted stock pursuant to the terms of a plan in effect on the
date hereof, (ii) issuances of common stock pursuant to the exercise of
options, preferred stock, contingent convertible senior notes or warrants
outstanding on the date of the initial offering of the Offered Securities,
(iii) issuances of common stock in exchange for preferred stock or
contingent convertible senior notes of the Company outstanding on the date of
the initial offering of the Offered Securities and (iv) the filing of a
registration statement in accordance with a registration rights agreement
relating to any preferred stock or contingent convertible senior notes of the
Company outstanding on the date of the initial offering of the Offered
Securities.
6. Free Writing Prospectuses. The
Company represents and agrees that, unless it obtains the prior consent of the
Representatives, and each Underwriter represents and agrees that, unless it
obtains the prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Offered Securities that would
constitute an Issuer Free Writing Prospectus, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405, required to be filed
with the Commission. Any such free writing prospectus consented to by
the Company and the Representatives is hereinafter referred to as a “ These excerpts taken from the CHK 8-K filed May 27, 2008. Closing Date”, against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities.
4. Offering by
Underwriters. It is understood that the Underwriters propose
to offer the Offered Securities for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the
Company. The Company agrees with the Underwriters
that:
(a) The
Company will file each Statutory Prospectus with the Commission pursuant to and
in accordance with Rule 424(b)(2) (or, if applicable and if consented to by
the Representatives, subparagraph (5), such consent not to be unreasonably
withheld or delayed) not later than the second business day following the
execution and delivery of this Agreement. The Company will also
prepare a final term sheet, containing solely the terms of the Offered
Securities, in the form set out in Schedule C, and file such term sheet
pursuant to Rule 433(d) under the Act within the time required by such Rule and
file promptly all other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act.
(b) The
Company will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or any Statutory Prospectus and will not
undertake any such amendment or supplement if the Representatives reasonably
object in writing thereto; and the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at
any time when a prospectus relating to the Offered Securities is required to be
delivered (whether physically or through compliance with Rule 172 under the Act)
in connection with sales by the Underwriters or any dealer, any event occurs as
a result of which the Prospectus, as then amended or supplemented would include
an untrue statement of a material fact or omit to 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 it is necessary at any time to
amend the Registration Statement or the Prospectus to comply with the Act, the
Company promptly will notify the Representatives of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance. Neither the Representatives’ consent to,
nor the Underwriters’ delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As soon
as practicable, but not later than 16 months, after the date of this
Agreement, the Company will make generally available to its securityholders an
earnings statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the registration statement relating
to the Offered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Company’s most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of this Agreement, which will satisfy the provisions of Section 11(a)
of the Act.
(e) The
Company will furnish to the Representatives copies of the Registration Statement
in the form it became effective (including all exhibits) and of all amendments
thereto, any related preliminary prospectus, any related preliminary prospectus
supplement, and, so long as a prospectus relating to the Offered Securities is
(or but for the exemption in Rule 172 would be required to be) delivered under
the Act in connection with sales by the Underwriters or any dealer, the
Prospectus and all amendments and supplements to such documents, in each case in
such quantities as the Representatives request. The Prospectus shall
be so furnished on or prior to 3:00 p.m., New York time, on the business day
following the execution and delivery of this Agreement. All other
documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the Underwriters all such
documents.
(f) The
Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) The
Company will pay all expenses incidental to the performance of its obligations
under this Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives designate and the printing of memoranda relating thereto, and
for expenses incurred in distributing preliminary prospectuses, preliminary
prospectus supplements and the Prospectus (including any amendments and
supplements thereto) to the Underwriters and for expenses incurred for
preparing, printing and distributing any Issuer Free Writing Prospectuses to
investors or prospective investors; provided that the
Underwriters (acting collectively) will reimburse the Company for up to $150,000
of expenses incurred by the Company in the performance of its obligations under
this Agreement.
(h) For a
period of 60 days after the date of this Agreement, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any U.S. dollar-denominated debt securities registered under the
Securities Act or eligible for trading pursuant to Rule 144A, issued or
guaranteed by the Company or its subsidiaries and having a maturity of more than
one year from the date of issue, without the prior written consent of Credit
Suisse Securities (USA) LLC, except issuances of exchangeable securities of the
size and type previously described to the Representatives; provided that the
Company may offer and sell one or more series of senior notes, the proceeds of
which are used to repurchase or redeem outstanding senior notes of the
Company.
6. Free Writing Prospectuses. The
Company represents and agrees that (other than the final term sheet prepared and
filed pursuant to Section 5(a) hereto), unless it obtains the prior consent
of the Representatives, and each Underwriter represents and agrees that (other
than one or more term sheets relating to the Offered Securities containing
customary information and conveyed to purchasers of Offered Securities), unless
it obtains the prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Offered Securities that would
constitute an Issuer Free Writing Prospectus, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405, required to be filed
with the Commission. Any such free writing prospectus consented to by
the Company and the Representatives is hereinafter referred to as a “ Closing Date”), shall
be determined by the Representatives but shall be not later than five full
business days after written notice of election to purchase Optional Securities
is given. The Company will deliver against payment of the purchase
price the Optional Securities being purchased on each Optional Closing Date in
the form of one or more permanent global securities in definitive form (each, an
“ This excerpt taken from the CHK 8-K filed Apr 1, 2008. Closing Date”), shall
be determined by the Representatives but shall be not later than five full
business days after written notice of election to purchase Optional Securities
is given. The Company will deliver the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters against payment of the purchase price therefor
in
Federal (same day) funds by official bank check or checks or wire transfer
to an
account at a bank acceptable to the Representatives drawn to the order of
the
Company, at the above office of Cravath, Swaine & Moore
LLP. The certificates for the Optional Securities being purchased on
each Optional Closing Date will be in definitive form, in such denominations
and
registered in such names as the Representatives request upon reasonable notice
prior to such Optional Closing Date and will be made available for checking
and
packaging at the above office of Cravath, Swaine & Moore LLP at a
reasonable time in advance of such Optional Closing Date.
4. Offering
by
Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth
in
the Prospectus.
5. Certain
Agreements of the
Company. The Company agrees with the several Underwriters
that:
(a) The
Company will file each Statutory Prospectus with the Commission pursuant
to and
in accordance with Rule 424(b)(2) (or, if applicable and if consented to by
the Representatives, subparagraph (5), such consent not to be unreasonably
withheld or delayed) not later than the second business day following the
execution and delivery of this Agreement. The Company will also prepare a
final
term sheet, containing solely the terms of the Offered Securities, in the
form
set out in Schedule C, and file such term sheet pursuant to Rule 433(d) under
the Act within the time required by such Rule and file promptly all other
material required to be filed by the Company with the Commission pursuant
to
Rule 433(d) under the act.
(b) The
Company will advise the Representatives promptly of any proposal to amend
or
supplement the Registration Statement or any Statutory Prospectus and will
not
undertake any such amendment or supplement if the Representatives reasonably
object in writing thereto; and the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect of
the
Registration Statement or of any part thereof and will use its best efforts
to
prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If,
at
any time when a prospectus relating to the Offered Securities is required
to be
delivered (whether physically or through compliance with Rule 172 under the
Act) in connection with sales by any Underwriter or dealer, any event occurs
as
a result of which the Prospectus, as then amended or supplemented would include
an untrue statement of a material fact or omit to 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 it is necessary at any
time to
amend the Registration Statement or the Prospectus to comply with the Act,
the
Company promptly will notify the Representatives of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which
will effect such compliance. Neither the Representatives’ consent to,
nor the Underwriters’ delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6
hereof.
(d) As
soon
as practicable, but not later than 16 months, after the date of this
Agreement, the Company will make generally available to its securityholders
an
earnings statement covering a period of at least 12 months beginning after
the later of (i) the effective date of the registration statement relating
to the Offered Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective
prior
to the date of this Agreement and (iii) the date of the Company’s most
recent Annual Report on Form 10-K filed with the Commission prior to the
date of this Agreement, which will satisfy the provisions of Section 11(a)
of the Act.
(e) The
Company will furnish to the Representatives copies of the Registration Statement
in the form it became effective (including all exhibits) and of all amendments
thereto, any related preliminary prospectus, any related preliminary prospectus
supplement, and, so long as a prospectus relating to the Offered Securities
is
(or but for the exemption in Rule 172 would be required to be) delivered
under
the Act in connection with sales by any Underwriter or dealer, the Prospectus
and all amendments and supplements to such documents, in each case in such
quantities as the Representatives request. The Prospectus shall be so
furnished on or prior to 3:00 p.m., New York time, on the business day
following the execution and delivery of this Agreement. All other
documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the Underwriters all
such
documents.
(f) The
Company will arrange for the qualification of the Offered Securities for
sale
under the laws of such jurisdictions as the Representatives designate and
will
continue such qualifications in effect so long as required for the
distribution.
(g) The
Company will pay all expenses incidental to the performance of its obligations
under this Agreement, for any filing fees and other expenses (including fees
and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives designate and the printing of memoranda relating thereto,
and
for expenses incurred in distributing preliminary prospectuses, preliminary
prospectus supplements and the Prospectus (including any amendments and
supplements thereto) to the Underwriters and for expenses incurred for
preparing, printing and distributing any Issuer Free Writing Prospectuses
to
investors or prospective investors; provided that on
the
First Closing Date, the Underwriters (acting collectively) will reimburse
the
Company for up to $150,000 of expenses incurred by the Company in the
performance of its obligations under this Agreement.
(h) For
a
period of 60 days after the date of this Agreement, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Act
relating to, any additional shares of its common stock or securities convertible
into or exchangeable or exercisable for any shares of its common
stock, or publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of Deutsche Bank
Securities Inc., except (i) grants of employee and director stock options
or restricted stock pursuant to the terms of a plan in effect on the date
hereof, (ii) issuances of common stock pursuant to the exercise of options,
preferred stock, contingent convertible senior notes or warrants outstanding
on
the date of the initial offering of the Offered Securities, (iii) issuances
of common stock in exchange for preferred stock of the Company outstanding
on
the date of the initial offering of the Offered Securities and (iv) the
filing of a registration statement in accordance with a registration rights
agreement relating to any preferred stock or contingent convertible senior
notes
of the Company outstanding on the date of the initial offering of the Offered
Securities.
6. Free
Writing Prospectuses. The
Company represents and agrees that (other than the final term sheet prepared
and
filed pursuant to Section 5(a) hereto), unless it obtains the prior consent
of
the Representatives, and each Underwriter represents and agrees that (other
than
one or more term sheets relating to the Offered Securities containing customary
information and conveyed to purchasers of Offered Securities), unless it
obtains
the prior consent of the Company and the Representatives, it has not made
and
will not make any offer relating to the Offered Securities that would constitute
an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the
Company and the Representatives is hereinafter referred to as a “ This excerpt taken from the CHK 8-K filed Aug 14, 2007. Closing Date”), shall be determined by the Underwriter but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver against payment of the purchase price the Optional Securities being purchased on each Optional Closing Date in the form of one or more permanent global securities in definitive form (each, an “ This excerpt taken from the CHK 8-K filed Dec 14, 2006. Closing Date”), shall be determined by the Underwriter but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to the Underwriter against payment of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer to an account at a bank acceptable to the Underwriter drawn to the order of the Company, at the above
office of Cravath, Swaine & Moore LLP. The certificates for the Optional Securities being purchased on each Optional Closing Date will be in definitive form, in such denominations and registered in such names as the Underwriter requests upon reasonable notice prior to such Optional Closing Date and will be made available for checking and packaging at the above office of Cravath, Swaine & Moore LLP at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter proposes to offer the Offered Securities for sale to the public as set forth in the Prospectus. 5. Certain Agreements of the Company. The Company agrees with the Underwriter that: (a) The Company will file each Statutory Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Underwriter, subparagraph (5), such consent not to be unreasonably withheld or delayed) not later than the second business day following the execution and delivery of this Agreement. (b) The Company will advise the Underwriter promptly of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus and will not undertake any such amendment or supplement if the Underwriter reasonably objects in writing thereto; and the Company will also advise the Underwriter promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered (whether physically or through compliance with Rule 172 under the Act) in connection with sales by the Underwriter or any dealer, any event occurs as a result of which the Prospectus, as then amended or supplemented would include an untrue statement of a material fact or omit to 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 it is necessary at any time to amend the Registration Statement or the Prospectus to comply with the Act, the Company promptly will notify the Underwriter of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Underwriter’s consent to, nor the Underwriter’s delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof. (d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration
[[NYCORP:2663970v5:3634D:12/07/06--12:56 p]] 9
statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act. (e) The Company will furnish to the Underwriter copies of the Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by the Underwriter or any dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Underwriter requests. The Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriter all such documents. (f) The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Underwriter designates and will continue such qualifications in effect so long as required for the distribution. (g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Underwriter designates and the printing of memoranda relating thereto, and for expenses incurred in distributing preliminary prospectuses, preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriter and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors; provided that on the First Closing Date, the Underwriter (acting collectively) will reimburse the Company for up to $150,000 of expenses incurred by the Company in the performance of its obligations under this Agreement. (h) For a period of 60 days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its common stock or securities convertible into or exchangeable or exercisable for any shares of its common stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Deutsche Bank Securities Inc., except (i) grants of employee and director stock options or restricted stock pursuant to the terms of a plan in effect on the date hereof, (ii) issuances of common stock pursuant to the exercise of options, preferred stock, contingent convertible senior notes or warrants outstanding on the date of the initial offering of the Offered Securities, (iii) issuances of common stock in exchange for preferred stock of the Company outstanding on the date of the initial offering of the Offered Securities and (iv) the filing of a registration statement in accordance with a registration rights agreement relating to any preferred stock or contingent convertible senior notes of the Company outstanding on the date of the initial offering of the Offered Securities. 6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Underwriter, and the Underwriter represents and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Underwriter is hereinafter referred to as a “ This excerpt taken from the CHK 8-K filed Dec 6, 2006. Closing Date”.
•Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale as set forth in the Prospectus. •Certain Agreements of the Company. The Company agrees with the several Underwriters that: •The Company will file each Statutory Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5), such consent not to be unreasonably withheld or delayed) not later than the second business day following the execution and delivery of this Agreement. The Company will also prepare a final term sheet, containing solely the terms of the Offered Securities, in the form set out in Schedule C, and file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule and file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act. •The Company will advise the Representatives promptly of any proposal to amend or supplement any Registration Statement or any Statutory Prospectus and will not undertake any such amendment or supplement if the Representatives reasonably object in writing thereto; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of any Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
[[NYCORP:2642096v20:3642W:12/01/06--02:34 p]] •If, at any time when a prospectus relating to the Offered Securities is required to be delivered (whether physically or through compliance with Rule 172 under the Act) in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, as then amended or supplemented would include an untrue statement of a material fact or omit to 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 it is necessary at any time to amend any Registration Statement or the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof. •As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Subsequent Registration Statement, (ii) the effective date of the most recent post-effective amendment to any Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act. •The Company will furnish to the Representatives copies of each Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Representatives request. The Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. •The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution. •The Company will pay all expenses incidental to the performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto, and for expenses incurred in distributing preliminary prospectuses and the Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors; provided that the Underwriters (acting collectively) will reimburse the Company for up to $150,000 of expenses incurred by the Company in the performance of its obligations under this Agreement. •For a period of 60 days after the date of this Agreement, neither the Company nor its subsidiaries will, without the prior written consent of Barclays Bank PLC, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any debt securities registered under the Securities Act or eligible for trading pursuant to Regulation S or Rule 144A, issued or guaranteed by the Company or its subsidiaries and having a maturity of more than one year from the date of issue, except issuances of exchangeable securities of the size and type previously described to the Representatives; provided that the Company may offer and sell one or more series of senior notes, the proceeds of which are used to repurchase or redeem outstanding senior notes of the Company.
[[NYCORP:2642096v20:3642W:12/01/06--02:34 p]] •The Company will assist the Underwriters in arranging for the Offered Securities to be eligible for clearance and settlement through Euroclear and Clearstream and to maintain such eligibility for so long as such Offered Securities remain outstanding. •The Company and each of the Subsidiary Guarantors will, jointly and severally, indemnify and hold harmless the Underwriters against any documentary, stamp or similar issuance tax, including any interest and penalties in the United States, Ireland or any other jurisdiction, on the creation, issuance and sale of the Offered Securities and on the initial resale thereof by the Underwriters and on the execution and delivery of this Agreement. •The Company further agrees that all amounts payable hereunder shall be paid in euro and free and clear of, and without any deduction or withholding for or on account of, any current or future taxes, levies, imposts, duties, charges or other deductions or withholdings levied in any jurisdiction from or through which payment is made, unless such deduction or withholding is required by applicable law, in which event the Company will pay additional amounts so that the persons entitled to such payments will receive the amount that such persons would otherwise have received but for such deduction or withholding after allowing for any tax credit or other benefit each such person receives by reason of such deduction or withholding. •Free Writing Prospectuses. The Company represents and agrees that (other than the final term sheet prepared and filed pursuant to Section 5(a) hereto), unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that (other than one or more term sheets relating to the Offered Securities containing customary information and conveyed to purchasers of Offered Securities), unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “ This excerpt taken from the CHK 8-K filed Jul 24, 2006. Closing Date”, against delivery to the Trustee as custodian for DTC of the Global Securities representing all of the Offered Securities.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public as set forth in the Prospectus. 5. Certain Agreements of the Company. The Company agrees with the several Underwriters that: (a) The Company will file each Statutory Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5), such consent not to be unreasonably withheld or delayed) not later than the second business day following the execution and delivery of this Agreement. The Company will also prepare a final term sheet, containing solely the terms of the Offered Securities, in the form set out in Schedule C, and file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule and file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus and will not undertake any such amendment or supplement if the Representatives reasonably object in writing thereto; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered (whether physically or through compliance with Rule 172 under the Act) in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, as then amended or supplemented would include an untrue statement of a material fact or omit to 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 it is necessary at any time to amend the Registration Statement or the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof. (d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act. (e) The Company will furnish to the Representatives copies of the Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Representatives request. The Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the business day following the execution and delivery of this Agreement.
9
All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (f) The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution. (g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto, and for expenses incurred in distributing preliminary prospectuses and the Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors; provided that the Underwriters (acting collectively) will reimburse the Company for up to $150,000 of expenses incurred by the Company in the performance of its obligations under this Agreement. (h) For a period of 60 days after the date of this Agreement, neither the Company nor its subsidiaries will, without the prior written consent of Banc of America Securities LLC, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any U.S. dollar-denominated debt securities registered under the Securities Act or eligible for trading pursuant to Rule 144A, issued or guaranteed by the Company or its subsidiaries and having a maturity of more than one year from the date of issue, except issuances of exchangeable securities of the size and type previously described to the Representatives; provided that the Company may offer and sell one or more series of senior notes, the proceeds of which are used to repurchase or redeem outstanding senior notes of the Company. 6. Free Writing Prospectuses. The Company represents and agrees that (other than the final term sheet prepared and filed pursuant to Section 5(a) hereto), unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that (other than one or more term sheets relating to the Offered Securities containing customary information and conveyed to purchasers of Offered Securities), unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “ These excerpts taken from the CHK 8-K filed Jun 30, 2006. Closing Date”), shall be determined by the Representatives but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to the Representatives for the accounts of the several Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of the Company, at the above office of Cravath, Swaine & Moore LLP. The certificates for the Optional Securities being purchased on each Optional Closing Date will be in definitive form, in such denominations and registered in such names as the Representatives request upon reasonable notice prior to such Optional Closing Date and will be made available for checking and packaging at the above office of Cravath, Swaine & Moore LLP at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public as set forth in the Prospectus. 5. Certain Agreements of the Company. The Company agrees with the several Underwriters that: (a) The Company will file each Statutory Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5), such consent not to be unreasonably withheld or delayed) not later than the second business day following the execution and delivery of this Agreement. The Company will also prepare a final term sheet, containing solely the terms of the Offered Securities, in the form set out in Schedule C, and file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule and file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus and will not undertake any such amendment or supplement if the Representatives reasonably object in writing thereto; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered (whether physically or through compliance with Rule 172 under the Act) in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, as then amended or supplemented would include an untrue statement of a material fact or omit to 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 it is necessary at any time to amend the Registration Statement or the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
9
(d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act. (e) The Company will furnish to the Representatives copies of the Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Representatives request. The Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (f) The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution. (g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto, and for expenses incurred in distributing preliminary prospectuses, preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors; provided that on the First Closing Date, the Underwriters (acting collectively) will reimburse the Company for up to $150,000 of expenses incurred by the Company in the performance of its obligations under this Agreement. (h) For a period of 90 days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its common stock or securities convertible into or exchangeable or exercisable for any shares of its common stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Goldman, Sachs & Co. except (i) grants of employee and director stock options or restricted stock pursuant to the terms of a plan in effect on the date hereof, (ii) issuances of common stock pursuant to the exercise of options, preferred stock, contingent convertible senior notes or warrants outstanding on the date of the initial offering of the Offered Securities, (iii) issuances of common stock in exchange for preferred stock of the Company outstanding on the date of the initial offering of the Offered Securities and (iv) the filing of a registration statement in accordance with a registration rights agreement relating to any preferred stock or contingent convertible senior notes of the Company outstanding on the date of the initial offering of the Offered Securities. 6. Free Writing Prospectuses. The Company represents and agrees that (other than the final term sheet prepared and filed pursuant to Section 5(a) hereto), unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that (other than one or more term sheets relating to the Offered Securities containing customary information and conveyed to purchasers of Offered Securities), unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing
10
Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “ Closing Date”), shall be determined by the Representatives but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to the Representatives for the accounts of the several Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of the Company, at the above office of Cravath, Swaine & Moore LLP. The certificates for the Optional Securities being purchased on each Optional Closing Date will be in definitive form, in such denominations and registered in such names as the Representatives request upon reasonable notice prior to such Optional Closing Date and will be made available for checking and packaging at the above office of Cravath, Swaine & Moore LLP at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public as set forth in the Prospectus. 5. Certain Agreements of the Company. The Company agrees with the several Underwriters that: (a) The Company will file each Statutory Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, subparagraph (5), such consent not to be unreasonably withheld or delayed) not later than the second business day following the execution and delivery of this Agreement. The Company will also prepare a final term sheet, containing solely the terms of the Offered Securities, in the form set out in Schedule C, and file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule and file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus and will not undertake any such amendment or supplement if the Representatives reasonably object in writing thereto; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered (whether physically or through compliance with Rule 172 under the Act) in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus, as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances
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under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6 hereof. (d) As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the registration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of this Agreement and (iii) the date of the Company’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of this Agreement, which will satisfy the provisions of Section 11(a) of the Act. (e) The Company will furnish to the Representatives copies of the Registration Statement in the form it became effective (including all exhibits) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Representatives request. The Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (f) The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution. (g) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the printing of memoranda relating thereto, and for expenses incurred in distributing preliminary prospectuses, preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors; provided that on the First Closing Date, the Underwriters (acting collectively) will reimburse the Company for up to $150,000 of expenses incurred by the Company in the performance of its obligations under this Agreement. (h) For a period of 90 days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or common stock or securities convertible into or exchangeable or exercisable for any shares of its Securities or common stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Goldman, Sachs & Co. except (i) grants of employee and director stock options or restricted stock pursuant to the terms of a plan in effect on the date hereof, (ii) issuances of common stock pursuant to the exercise of options, preferred stock, contingent convertible senior notes or warrants outstanding on the date of the initial offering of the Offered Securities, (iii) issuances of common stock in exchange for preferred stock of the Company outstanding on the date of the initial offering of the Offered Securities and (iv) the filing of a registration statement in accordance with a registration rights
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agreement relating to any preferred stock or contingent convertible senior notes of the Company outstanding on the date of the initial offering of the Offered Securities. (i) The Company will use its reasonable best efforts to have the Offered Securities be approved for listing on the NYSE, subject to the Company meeting the listing requirements of the NYSE. 6. Free Writing Prospectuses. The Company represents and agrees that (other than the final term sheet prepared and filed pursuant to Section 5(a) hereto), unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that (other than one or more term sheets relating to the Offered Securities containing customary information and conveyed to purchasers of Offered Securities), unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “ | EXCERPTS ON THIS PAGE:
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