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This excerpt taken from the IBM 8-K filed Nov 5, 2009. Agreements.
(A) The
Company agrees with the several Underwriters that:
(a) The
Company will file the Final Prospectus, properly completed, pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives (i) when any amendment
to the Registration Statement relating to the Securities shall have become
effective, (ii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final Prospectus or
for any additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
any notice that would prevent its use or the institution or threatening of any
proceeding for that purpose and (iv) 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. The Company will use its best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. The Company will not file any amendment of the
Registration Statement or supplement to the Final Prospectus unless the Company
has furnished you a copy for your review prior to filing and will not file any
such proposed amendment or supplement to which you reasonably
object.
(b) If,
at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which
the Final Prospectus as then amended or supplemented would include any 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 shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company will give the Representatives immediate notice of
the occurrence of such event and promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) The
Company will make generally available to its security holders and to the
Representatives as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the current fiscal
quarter of the Company, an earning statement (which need not be audited) of the
Company and its subsidiaries, covering a period of at least 12 months
beginning after the end of the current fiscal quarter of the Company, which will
satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder.
5
(d) The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement (including exhibits
thereto) and each amendment thereto which shall become effective on or prior to
the Closing Date and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many copies of any
Preliminary Final Prospectus and the Final Prospectus and each Issuer Free
Writing Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The
Company will arrange for the qualification of the Securities for sale under the
laws of such jurisdictions as the Representatives may designate, will maintain
such qualifications in effect so long as required for the distribution of the
Securities and will arrange for the determination of the legality of the
Securities for purchase by institutional investors.
(f) Until
the earlier of the day on which the distribution of the Securities is completed
or the business day following the Closing Date, the Company will not, without
the consent of the Representatives, offer or sell, or announce the offering of,
any United States dollar denominated debt securities covered by the Registration
Statement or any other registration statement filed under the Act.
(g) To
prepare a final term sheet, containing solely a description of the Securities,
in a form approved by you and to file such term sheet pursuant to
Rule 433(d) within the time required by such Rule.
(h) If
there occurs an event or development as a result of which the Disclosure Package
would include an untrue statement of a material fact or would omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances then prevailing, not misleading, the Company will notify
promptly the Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented.
(i) The
Company agrees that, unless it obtains the prior written consent of the
Representatives, it has not made and will not make any offer relating to the
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 by the Company with the Commission or retained by the
Company under Rule 433, other than the final term sheet prepared and filed
pursuant to Section 4(A)(g) hereto; provided that the prior written consent of
the parties hereto shall be deemed to have been given in respect of the Free
Writing Prospectuses included in Schedule III hereto. Any such free
writing prospectus consented to by the Representatives is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company agrees that
(x) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
6
(B) The
several Underwriters agree with the Company that:
(a) The
Representatives will pay the expenses of printing and distributing all documents
relating to the offering.
(b) The
Representatives will pay the reasonable fees and disbursements of outside
counsel for the Company and the Underwriters relating to the
offering.
(c) The
Representatives will pay any fees of Moody’s Investors Service, Inc. and
Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies,
Inc. relating to the rating of the Securities.
(d) The
Representatives will pay the fees and disbursements of PricewaterhouseCoopers
LLP relating to the preparation of the letter required by Section 5(e) of
this Agreement.
(e) The
Representatives will pay the reasonable fees and expenses of The Bank of New
York, as Trustee.
(f) The
Representatives will pay any and all fees associated with listing the Securities
on any United States or foreign securities exchange.
(g) The
Representatives will pay any and all travel expenses incurred by the Company in
connection with the offering of the Securities.
(h) The
Representatives will pay any and all other miscellaneous expenses and/or taxes
associated with the offering.
(i) Each
Underwriter agrees to furnish the Company with a copy of each proposed Free
Writing Prospectus to be prepared by or on behalf of such Underwriter before its
first use and not to use any Free Writing Prospectus, to which the Company
reasonably objects, provided, however, that without consent of the Company each
Underwriter may use the final term sheet prepared and filed pursuant to
Section 4(A)(g) hereto and one or more preliminary term sheets relating to
the Securities containing customary information.
5. This excerpt taken from the IBM 8-K filed Jul 25, 2008. Agreements.
(A) The
Company agrees with the several Underwriters that:
(a) The
Company will file the Final Prospectus, properly completed, pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely filing.
The Company will promptly advise the Representatives (i) when any amendment
to the Registration Statement relating to the Securities shall have become
effective, (ii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final Prospectus or
for any additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
any notice that would prevent its use or the institution or threatening of any
proceeding for that purpose and (iv) 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. The Company will use its best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. The Company will not file any amendment of the
Registration Statement or supplement to the Final Prospectus unless the Company
has furnished you a copy for your review prior to filing and will not file any
such proposed amendment or supplement to which you reasonably
object.
(b) If,
at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which
the Final Prospectus as then amended or supplemented would include any 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 shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company will give the Representatives immediate notice of
the occurrence of such event and promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) The
Company will make generally available to its security holders and to the
Representatives as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the current fiscal
quarter of the Company, an earning statement (which need not be audited) of the
Company and its subsidiaries, covering a period of at least 12 months
beginning after the end of the current fiscal quarter of the Company, which will
satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder.
5
(d) The
Company will furnish to the Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement (including exhibits
thereto) and each amendment thereto which shall become effective on or prior to
the Closing Date and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many copies of any
Preliminary Final Prospectus and the Final Prospectus and each Issuer Free
Writing Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The
Company will arrange for the qualification of the Securities for sale under the
laws of such jurisdictions as the Representatives may designate, will maintain
such qualifications in effect so long as required for the distribution of the
Securities and will arrange for the determination of the legality of the
Securities for purchase by institutional investors.
(f) Until
the earlier of the day on which the distribution of the Securities is completed
or the business day following the Closing Date, the Company will not, without
the consent of the Representatives, offer or sell, or announce the offering of,
any United States dollar denominated debt securities covered by the Registration
Statement or any other registration statement filed under the Act.
(g) To
prepare a final term sheet, containing solely a description of the Securities,
in a form approved by you and to file such term sheet pursuant to
Rule 433(d) within the time required by such Rule.
(h) If
there occurs an event or development as a result of which the Disclosure Package
would include an untrue statement of a material fact or would omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances then prevailing, not misleading, the Company will notify
promptly the Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented.
(i) The
Company agrees that, unless it obtains the prior written consent of the
Representatives, it has not made and will not make any offer relating to the
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 by the Company with the Commission or retained by the
Company under Rule 433, other than the final term sheet prepared and filed
pursuant to Section 4(A)(g) hereto; provided that the prior written consent of
the parties hereto shall be deemed to have been given in respect of the Free
Writing Prospectuses included in Schedule III hereto. Any such free
writing prospectus consented to by the Representatives is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company agrees that
(x) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of
timely filing with the Commission, legending and record keeping.
6
(B) The
several Underwriters agree with the Company that:
(a) The
Representatives will pay the expenses of printing and distributing all documents
relating to the offering.
(b) The
Representatives will pay the reasonable fees and disbursements of outside
counsel for the Company and the Underwriters relating to the
offering.
(c) The
Representatives will pay any fees of Moody’s Investors Service, Inc. and
Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies,
Inc. relating to the rating of the Securities.
(d) The
Representatives will pay the fees and disbursements of PricewaterhouseCoopers
LLP relating to the preparation of the letter required by Section 5(e) of
this Agreement.
(e) The
Representatives will pay the reasonable fees and expenses of The Bank of New
York Mellon, as Trustee.
(f) The
Representatives will pay any and all fees associated with listing the Securities
on any United States or foreign securities exchange.
(g) The
Representatives will pay any and all travel expenses incurred by the Company in
connection with the offering of the Securities.
(h) The
Representatives will pay any and all other miscellaneous expenses and/or taxes
associated with the offering.
(i) Each
Underwriter agrees to furnish the Company with a copy of each proposed Free
Writing Prospectus to be prepared by or on behalf of such Underwriter before its
first use and not to use any Free Writing Prospectus, to which the Company
reasonably objects, provided, however, that without consent of the Company each
Underwriter may use the final term sheet prepared and filed pursuant to
Section 4(A)(g) hereto and one or more preliminary term sheets relating to
the Securities containing customary information.
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