Agency Transactions. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Agents agree that the Company may issue and sell through an Agent, as sales agent for the Company, the Shares (an “Agency Transaction”) as follows: (i) The Company may, from time to time, propose to an Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially similar to Exhibit A hereto (an “Agency Transaction Notice”)) from any of the individuals listed as authorized representatives of the Company on Schedule 1 hereto (each, an “Authorized Company Representative”), such proposal to include: the trading day(s) for the New York Stock Exchange (the “Exchange”) (which may not be a day on which the Exchange is scheduled to close prior to its regular weekday closing time) on which the Shares are to be sold (each, a “Trading Day”); the maximum number of Shares that the Company wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company is willing to sell the Shares (the “Floor Price”). (ii) If such proposed terms for an Agency Transaction are acceptable to the Agents, it shall promptly confirm the terms by countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Representative. (iii) Subject to the terms and conditions hereof, each Agent shall use its commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. The Agents shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees with the Agents that (x) there can be no assurance that the Agents will be successful in selling all or any of such Shares, (y) the Agents shall incur no liability or obligation to the Company or any other person or entity if it does not sell any Shares for any reason and (z) the Agents shall be under no obligation to purchase any Shares on a principal basis pursuant to this Agreement (except in the case of a Principal Transaction (as defined below) pursuant to this Agreement and the relevant Terms Agreement (as defined below)). (iv) The Company, acting through an Authorized Company Representative, or an Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend an offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice. (v) If the terms of any Agency Transaction as set forth in an Agency Transaction Notice contemplate that the Shares shall be sold on more than one Trading Day, then the Company and the applicable Agent shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Trading Days, and such additional terms and conditions shall be binding to the same extent as any other terms contained in the relevant Agency Transaction Notice. (vi) Each Agent, as sales agent in an Agency Transaction, shall not make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (x) by means of ordinary brokers’ transactions that qualify for delivery of the Prospectus in accordance with Rule 153 of the Rules and Regulations and meet the definition of an “at the market offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Agent in writing. (vii) The compensation to an Agent for sales of the Shares in an Agency Transaction with respect to which such Agent acts as sales agent hereunder shall be equal to One and One-half Percent (1.5%) of the gross offering proceeds of the Shares sold under this Agreement. The Agent shall provide written confirmation to the Company (which may be provided by email to an Authorized Company Representative) following the close of trading on the Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (i) the number of Shares sold on such Trading Day, (ii) the gross offering proceeds received from such sales, (iii) the commission payable by the Company to the Agent with respect to such sales and (iv) the net offering proceeds (being the gross offering proceeds for such sales less the commission payable for such sales) (the “Net Offering Proceeds”). (viii) Settlement for sales of the Shares in an Agency Transaction pursuant to this Agreement shall occur on the third Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, an “Agency Settlement Date”). On each Agency Settlement Date, the Shares sold through an Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to such Agent against payment by the Agent to the Company of the Net Offering Proceeds from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to such Agent’s or its designee’s account (provided that the Agent shall have given the Company written notice of such designee prior to the relevant Agency Settlement Date) at The Depository Trust Company or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same-day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Agency Settlement Date, the Company shall (i) hold the Agent harmless against any loss, claim, damage, or expense (including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Agent any commission, discount or other compensation to which it would otherwise be entitled absent such default.
Appears in 1 contract
Agency Transactions. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Agents agree that the Company may issue and sell through an Agent, as sales agent for the Company, the Shares (an “Agency Transaction”) as follows:
(i) The Company may, from time to timetime during the Term, propose to an the Agent the terms of that they enter into an Agency Transaction to be executed on a specified Exchange Business Day or over a specified period of Exchange Business Days, which proposal shall be made to the Agent by means of a telephone call (confirmed promptly or by electronic mail in a form substantially similar to Exhibit A hereto (an “Agency Transaction Notice”)) email from any of the individuals listed as an authorized representatives representative of the Company on Schedule 1 A hereto to make such sales and shall set forth the information specified below (each, an “Authorized Company RepresentativeIssuance Transaction Proposal”). If the Agent agrees to the terms of such proposed Agency Transaction or if the Company and the Agent mutually agree to modified terms for such proposed Agency Transaction, such proposal to include: then the trading day(s) for the Agent shall no later than 9:30 a.m. (New York Stock City time) on the Exchange Business Day following the date the Company delivers an Issuance Transaction Proposal deliver to the Company by email a notice (the each, an “ExchangeIssuance Transaction Acceptance”) confirming the terms of such proposed Agency Transaction as set forth in such Issuance Transaction Proposal or setting forth the modified terms for such proposed Agency Transaction as agreed by the Company and the Agent, as the case may be, whereupon such Agency Transaction shall become a binding agreement between the Company and the Agent. Each Issuance Transaction Proposal shall specify:
(which may not be a day on which 1) the Exchange is scheduled to close prior to its regular weekday closing timeBusiness Day(s) on which the Issuance Shares subject to such Agency Transaction are intended to be sold (each, a “Trading DayPurchase Date”); ;
(2) the maximum number of Issuance Shares that to be sold by the Agent on, or over the course of, such Purchase Date(s), or as otherwise agreed between the Company wishes to sell and Agent and documented in the aggregate and on each Trading Day; and relevant Issuance Transaction Acceptance;
(3) the minimum price lowest price, if any, at which the Company is willing to sell the Issuance Shares on each such Purchase Date or a formula pursuant to which such lowest price shall be determined (the each, an “Issuance Floor Price”).; and
(ii4) If such proposed terms for an Agency Transaction are acceptable to the Agents, it shall promptly confirm the terms by countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Representative.
(iii) Subject to the terms and conditions hereof, each Agent shall use its commercially reasonable efforts to sell all if other than 1% of the Gross Issuance Sales Price, the Agent’s discount or commission (the “Issuance Selling Commission Rate”). An Issuance Transaction Proposal shall not set forth terms that, after taking into account the aggregate Gross Issuance Sales Price of Issuance Shares designated inpreviously purchased and to be purchased pursuant to pending Issuance Transaction Acceptances (if any), including under any Alternative Distribution Agreements, and subject any Terms Agreements and the aggregate Gross Forward Sales Price of Forward Hedge Shares previously sold or to be sold pursuant to pending Forward Transaction Acceptances (if any) or any Alternative Distribution Agreements, result or could result in a total amount that exceeds the terms of, such Agency Transaction Notice. The Agents Maximum Amount nor shall not sell any Share at a price it set forth an Issuance Floor Price which is lower than the Floor Priceminimum price authorized from time to time by the Company’s board of directors or, if permitted by applicable law and the Company’s charter and by-laws, a duly authorized committee thereof. The Company acknowledges shall have responsibility for maintaining records with respect to the aggregate number and agrees with aggregate Gross Issuance Sales Price of Issuance Shares sold and for otherwise monitoring the Agents that (x) there can be no assurance availability of Shares for sale under the Registration Statement and for ensuring that the Agents will be successful in selling all aggregate number and aggregate Gross Issuance Sales Price of Issuance Shares offered and sold does not exceed, and the price at which any Issuance Shares are offered or sold is not lower than, the aggregate number and aggregate Gross Issuance Sales Price of Issuance Shares and the minimum price authorized from time to time by the Company’s board of directors or, if permitted by applicable law and the Company’s charter and by-laws, a duly authorized committee thereof. In the event that more than one Issuance Transaction Acceptance with respect to any Purchase Date(s) is delivered by the Agent to the Company, the latest Issuance Transaction Acceptance shall govern any sales of such SharesIssuance Shares for the relevant Purchase Date(s), (y) except to the Agents shall incur no liability or obligation extent of any action occurring pursuant to a prior Issuance Transaction Acceptance and prior to the delivery to the Company of the latest Issuance Transaction Acceptance. The Company or any other person or entity if it does not sell any Shares for any reason and (z) the Agents shall be under no obligation to purchase any Shares on a principal basis pursuant to this Agreement (except in the case of a Principal Transaction (as defined below) pursuant to this Agreement and the relevant Terms Agreement (as defined below)).
(iv) The Company, acting through an Authorized Company Representative, or an Agent may, upon notice to the other such party hereto by telephone (confirmed promptly by electronic e-mail), suspend an or terminate the offering of the SharesIssuance Shares pursuant to Agency Transactions for any reason; provided, however, that such suspension or termination shall not affect or impair the parties’ any party’s respective obligations with respect to the Issuance Shares sold hereunder prior to the giving of such notice.
(v) If notice or their respective obligations under any Terms Agreement or Forward Transaction. Notwithstanding the foregoing, if the terms of any Agency Transaction as set forth in an Agency Transaction Notice contemplate that the Issuance Shares shall be sold on more than one Trading DayPurchase Date, then the Company and the applicable Agent shall mutually agree to such additional terms and conditions as they deem reasonably necessary in respect of such multiple Trading DaysPurchase Dates, and such additional terms and conditions shall be set forth in or confirmed by, as the case may be, the relevant Transaction Acceptance and be binding to the same extent as any other terms contained in the relevant Agency Transaction Noticetherein.
(viii) Each The Purchase Date(s) in respect of the Issuance Shares deliverable pursuant to any Issuance Transaction Acceptance shall be set forth in or confirmed by, as the case may be, the applicable Issuance Transaction Acceptance. Except as otherwise agreed between the Company and the Agent, the Agent’s commission for any Issuance Shares sold through the Agent pursuant to this Agreement shall be a percentage, not to exceed 1%, of the actual sales price of such Issuance Shares (the “Gross Issuance Sales Price”), which commission shall be as sales agent set forth in or confirmed by, as the case may be, the applicable Issuance Transaction Acceptance; provided, however, that such commission shall not apply when the Agent acts as principal, in which case the applicable commission or discount shall instead be set forth in the applicable Terms Agreement. Notwithstanding the foregoing, in the event the Company engages the Agent for a sale of Issuance Shares in an Agency TransactionTransaction that would constitute a “distribution,” within the meaning of Rule 100 of Regulation M under the Exchange Act or a “block” within the meaning of Rule 10b-18(a)(5) under the Exchange Act, shall not make any sales of the Shares on behalf of Company will provide the Agent, at the Agent’s request and upon reasonable advance notice to the Company, on or prior to the Settlement Date the opinions of counsel, accountants’ letters and officers’ certificates pursuant to this AgreementSection 6 hereof, other than (x) by means of ordinary brokers’ transactions that qualify for delivery of each dated the Prospectus in accordance with Rule 153 of the Rules Settlement Date, and Regulations and meet the definition of an “at the market offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of documents and information as the Shares on behalf of the Company in its capacity as agent of the Company as Agent shall be agreed by reasonably request, and the Company and the Agent in writing.
(vii) The will agree to compensation to an Agent that is customary for sales of the Shares in an Agency Transaction with respect to which such Agent acts as sales agent hereunder shall be equal to One and One-half Percent (1.5%) of the gross offering proceeds of the Shares sold under this Agreement. The Agent shall provide written confirmation to the Company (which may be provided by email to an Authorized Company Representative) following the close of trading on the Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (i) the number of Shares sold on such Trading Day, (ii) the gross offering proceeds received from such sales, (iii) the commission payable by the Company to the Agent with respect to such sales and (iv) the net offering proceeds (being the gross offering proceeds for such sales transaction. The Gross Issuance Sales Price less the Agent’s commission payable and after deduction for such sales) (any transaction fees, transfer taxes or similar taxes or fees imposed by any governmental, regulatory or self-regulatory organization in respect of the sale of the applicable Issuance Shares is referred to herein at the “Net Offering ProceedsIssuance Sales Price.”).
(viiiiii) Settlement for sales Payment of the Shares in an Agency Transaction pursuant to this Agreement shall occur on the third Trading Day (or such earlier day as is industry practice Net Issuance Sales Price for regular-way trading) following the date on which such sales are made (each such day, an “Agency Settlement Date”). On each Agency Settlement Date, the Issuance Shares sold through an Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company on any Purchase Date pursuant to such Agent against payment by the Agent a Transaction Acceptance shall be made to the Company by wire transfer of immediately available funds to the account of the Net Offering Proceeds from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by Company (which the Company or its transfer agent shall provide to such Agent’s or its designee’s account (provided that the Agent shall have given the Company written notice of such designee at least one Exchange Business Day prior to the relevant applicable Agency Settlement DateDate (as defined below)) against delivery of such Issuance Shares to the Agent’s account, or an account of the Agent’s designee, at The Depository Trust Company through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same-day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Agency Settlement Date, the Company shall (i) hold the Agent harmless against any loss, claim, damage, or expense (including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and the Agent. Such payment and delivery shall be made at or about 10:00 a.m. (iiNew York City time) pay on the Agent any commissionsecond Exchange Business Day (or such other day as may, discount from time to time, become standard industry practice for settlement of such a securities issuance or other compensation as agreed to which it would otherwise be entitled absent such defaultby the Company and the Agent) following each Purchase Date (each, an “Agency Settlement Date”).
Appears in 1 contract
Agency Transactions. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Agents Sales Agent agree that the Company may issue and sell through an the Sales Agent, as sales agent for the Company, the Shares (an “Agency Transaction”) as follows:
(i) The Company may, from time to time, propose to an the Sales Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail (or other method mutually agreed to in writing by the parties) in a form substantially similar to Exhibit A hereto (an “Agency Transaction Notice”)) from any of the individuals listed as authorized representatives of the Company on Schedule 1 hereto (each, an “Authorized Company Representative”)) and addressed to each of the individuals from the Sales Agent set forth on Schedule 1, as such Schedule 1 may be amended from time to time, such proposal to include: the maximum number of Shares that the Company wishes to sell in the aggregate pursuant to such Agency Transaction Notice (the “Placement Shares”); the time period and trading day(s) for the New York Stock Exchange Nasdaq Capital Market (the “ExchangeNasdaq”) (which may not be a day on which the Exchange Nasdaq is scheduled to close prior to its regular weekday closing time) on which the Placement Shares are to be sold (each, a “Trading Day”); the maximum number of Placement Shares that the Company wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company is willing to sell the Placement Shares (the “Floor Price”).
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsSales Agent, it shall promptly confirm the terms by countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Representative. The Agency Transaction Notice as countersigned by the Sales Agent shall be effective unless and until (i) the entire amount of Placement Shares set forth in the Agency Transaction Notice have been sold, (ii) in accordance with the notice requirements set forth in Section 1(e), the Company or Sales Agent suspends or terminates the Agency Transaction Notice, (iii) the Company issues a subsequent Agency Transaction Notice with parameters superseding those on the earlier dated Agency Transaction Notice, or (iv) this Agreement has been terminated under the provisions of Section 6. It is expressly acknowledged and agreed that neither the Company nor the Sales Agent will have any obligation whatsoever with respect to an Agency Transaction or any Placement Shares unless and until the Sales Agent delivers a countersigned Agency Transaction Notice to the Company, and then only upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms of an Agency Transaction Notice, the terms of the Agency Transaction Notice will control.
(iii) Subject to the terms and conditions hereof, each Agent shall use its commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. The Agents shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees with the Agents that (x) there can be no assurance that the Agents will be successful in selling all or any of such Shares, (y) the Agents shall incur no liability or obligation to the Company or any other person or entity if it does not sell any Shares for any reason and (z) the Agents shall be under no obligation to purchase any Shares on a principal basis pursuant to this Agreement (except in the case of a Principal Transaction (as defined below) pursuant to this Agreement and the relevant Terms Agreement (as defined below)).
(iv) The Company, acting through an Authorized Company Representative, or an Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend an offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(v) If the terms of any Agency Transaction as set forth in an Agency Transaction Notice contemplate that the Shares shall be sold on more than one Trading Day, then the Company and the applicable Agent shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Trading Days, and such additional terms and conditions shall be binding to the same extent as any other terms contained in the relevant Agency Transaction Notice.
(vi) Each Agent, as sales agent in an Agency Transaction, shall not make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (x) by means of ordinary brokers’ transactions that qualify for delivery of the Prospectus in accordance with Rule 153 of the Rules and Regulations and meet the definition of an “at the market offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Agent in writing.
(vii) The compensation to an the Sales Agent for sales each sale of the Placement Shares in an Agency Transaction with respect to which such the Sales Agent acts as sales agent hereunder shall be equal to One and One-half Percent (1.5%) 3.5% of the gross offering proceeds of the Placement Shares sold under this Agreementin such Agency Transaction. The foregoing rate of compensation shall not apply when the Sales Agent shall provide written confirmation purchases Shares on a principal basis, in which case the Company may sell Shares to the Company (which may be provided by email to an Authorized Company Representative) following the close of trading on the Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (i) the number of Shares sold on such Trading Day, (ii) the gross offering proceeds received from such sales, (iii) the commission payable by the Company to the Sales Agent with respect to such sales and (iv) the net offering proceeds (being the gross offering proceeds for such sales less the commission payable for such sales) (the “Net Offering Proceeds”).
(viii) Settlement for sales of the Shares in an Agency Transaction pursuant to this Agreement shall occur on the third Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, an “Agency Settlement Date”). On each Agency Settlement Date, the Shares sold through an Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to such Agent against payment by the Agent to the Company of the Net Offering Proceeds from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to such Agent’s or its designee’s account (provided that the Agent shall have given the Company written notice of such designee prior to the relevant Agency Settlement Date) at The Depository Trust Company or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same-day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Agency Settlement Date, the Company shall (i) hold the Agent harmless against any loss, claim, damage, or expense (including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Agent any commission, discount or other compensation to which it would otherwise be entitled absent such default.as
Appears in 1 contract
Sources: Equity Distribution Agreement
Agency Transactions. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Agents Citigroup agree that the Company may issue and sell through an AgentCitigroup, as exclusive sales agent for the CompanyCompany for the purpose of soliciting purchases of the Shares from the Company pursuant to this Agreement, the Shares (an “Agency Transaction”) as follows:
(i) The Company may, from time to time, propose to an Agent Citigroup the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially similar to Exhibit A hereto (an “Agency Transaction Notice”)) from any of the individuals listed as authorized representatives of the Company on Schedule 1 hereto (each, an “Authorized Company Representative”), such proposal to include: the trading day(s) for the New York Stock Exchange (the “Exchange”) (which may not be a day on which the Exchange is scheduled to close prior to its regular weekday closing time) on which the Shares are to be sold (each, a “Trading Day”); the maximum number of Shares that the Company wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company is willing to sell the Shares (the “Floor Price”).
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsCitigroup, it shall promptly confirm the terms by countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Representative.
(iii) Subject to the terms and conditions hereof, each Agent Citigroup shall use its commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. The Agents Citigroup shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees with the Agents Citigroup that (x) there can be no assurance that the Agents Citigroup will be successful in selling all or any of such Shares, (y) the Agents Citigroup shall incur no liability or obligation to the Company or any other person or entity if it does not sell any Shares for any reason and (z) the Agents Citigroup shall be under no obligation to purchase any Shares on a principal basis pursuant to this Agreement (except in the case of a Principal Transaction (as defined below) pursuant to this Agreement and the relevant Terms Agreement (as defined below)).
(iv) The Company, acting through an Authorized Company Representative, or an Agent Citigroup may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend an offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(v) If the terms of any Agency Transaction as set forth in an Agency Transaction Notice contemplate that the Shares shall be sold on more than one Trading Day, then the Company and the applicable Agent Citigroup shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Trading Days, and such additional terms and conditions shall be binding to the same extent as any other terms contained in the relevant Agency Transaction Notice.
(vi) Each AgentCitigroup, as sales agent in an Agency Transaction, shall not make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (x) by means of ordinary brokers’ transactions that qualify for delivery of the Prospectus in accordance with Rule 153 of the Rules and Regulations and meet the definition of an “at the market offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Agent Citigroup in writing.
(vii) The compensation to an Agent Citigroup for sales of the Shares in an Agency Transaction with respect to which such Agent Citigroup acts as sales agent hereunder shall be equal to One and One-half (A) Two Percent (1.52%) of the gross offering proceeds of the Shares for the first $30,000,000 in sales and (B) One and Three Quarter Percent (1.75%) of the gross offering proceeds of the Shares for sales thereafter, sold under this Agreement. The Agent Citigroup shall provide written confirmation to the Company (which may be provided by email to an Authorized Company Representative) following the close of trading on the Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (i) the number of Shares sold on such Trading Day, (ii) the gross offering proceeds received from such sales, (iii) the commission payable by the Company to the Agent Citigroup with respect to such sales and (iv) the net offering proceeds (being the gross offering proceeds for such sales less the commission payable for such sales) (the “Net Offering Proceeds”).
(viii) Settlement for sales of the Shares in an Agency Transaction pursuant to this Agreement shall occur on the third Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, an “Agency Settlement Date”). On each Agency Settlement Date, the Shares sold through an Agent Citigroup in Agency Transactions for settlement on such date shall be issued and delivered by the Company to such Agent Citigroup against payment by the Agent Citigroup to the Company of the Net Offering Proceeds from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to such AgentCitigroup’s or its designee’s account (provided that the Agent Citigroup shall have given the Company written notice of such designee prior to the relevant Agency Settlement Date) at The Depository Trust Company or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same-day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Agency Settlement Date, the Company shall (i) hold the Agent Citigroup harmless against any loss, claim, damage, or expense (including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Agent Citigroup any commission, discount or other compensation to which it would otherwise be entitled absent such default.
Appears in 1 contract
Agency Transactions. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Agents BMOCM agree that the Company may issue and sell through an AgentBMOCM, as sales agent for the Company, the Shares (an “Agency Transaction”) as follows:
(i) The Company may, from time to time, propose to an Agent BMOCM the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially similar to Exhibit A hereto (an “Agency Transaction Notice”)) from any of the individuals listed as authorized representatives of the Company on Schedule 1 hereto (each, an “Authorized Company Representative”), such proposal to include: the trading day(s) for the New York Stock Exchange (the “Exchange”) (which may not be a day on which the Exchange is scheduled to close prior to its regular weekday closing time) on which the Shares are to be sold (each, a “Trading Day”); the maximum number of Shares that the Company wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company is willing to sell the Shares (the “Floor Price”).
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsBMOCM, it shall promptly confirm the terms by countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Representative.
(iii) Subject to the terms and conditions hereof, each Agent BMOCM shall use its commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. The Agents BMOCM shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees with the Agents BMOCM that (x) there can be no assurance that the Agents BMOCM will be successful in selling all or any of such Shares, (y) the Agents BMOCM shall incur no liability or obligation to the Company or any other person or entity if it does not sell any Shares for any reason and (z) the Agents BMOCM shall be under no obligation to purchase any Shares on a principal basis pursuant to this Agreement (except in the case of a Principal Transaction (as defined below) pursuant to this Agreement and the relevant Terms Agreement (as defined below)).
(iv) The Company, acting through an Authorized Company Representative, or an Agent BMOCM may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend an offering of the Shares; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(v) If the terms of any Agency Transaction as set forth in an Agency Transaction Notice contemplate that the Shares shall be sold on more than one Trading Day, then the Company and the applicable Agent BMOCM shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Trading Days, and such additional terms and conditions shall be binding to the same extent as any other terms contained in the relevant Agency Transaction Notice.
(vi) Each AgentBMOCM, as sales agent in an Agency Transaction, shall not make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (x) by means of ordinary brokers’ transactions that qualify for delivery of the Prospectus in accordance with Rule 153 of the Rules and Regulations and meet the definition of an “at the market offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the Agent BMOCM in writing.
(vii) The compensation to an Agent BMOCM for sales of the Shares in an Agency Transaction with respect to which such Agent BMOCM acts as sales agent hereunder shall be equal to One and One-half Two Percent (1.52%) of the gross offering proceeds of the Shares sold under this Agreement. The Agent BMOCM shall provide written confirmation to the Company (which may be provided by email to an Authorized Company Representative) following the close of trading on the Exchange on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (i) the number of Shares sold on such Trading Day, (ii) the gross offering proceeds received from such sales, (iii) the commission payable by the Company to the Agent BMOCM with respect to such sales and (iv) the net offering proceeds (being the gross offering proceeds for such sales less the commission payable for such sales) (the “Net Offering Proceeds”).
(viii) Settlement for sales of the Shares in an Agency Transaction pursuant to this Agreement shall occur on the third Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, an “Agency Settlement Date”). On each Agency Settlement Date, the Shares sold through an Agent BMOCM in Agency Transactions for settlement on such date shall be issued and delivered by the Company to such Agent BMOCM against payment by the Agent BMOCM to the Company of the Net Offering Proceeds from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to such AgentBMOCM’s or its designee’s account (provided that the Agent BMOCM shall have given the Company written notice of such designee prior to the relevant Agency Settlement Date) at The Depository Trust Company or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same-day funds delivered to the account designated by the Company. If the Company, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares on any Agency Settlement Date, the Company shall (i) hold the Agent BMOCM harmless against any loss, claim, damage, or expense (including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the Agent BMOCM any commission, discount or other compensation to which it would otherwise be entitled absent such default.
Appears in 1 contract
Agency Transactions. On the basis of the representations, warranties and agreements of the Company and the Operating Partnership herein contained, but subject to the terms and conditions herein set forth, the Company and each of the Agents Agent agree that the Company may issue and sell through an each Agent, acting as sales agent for the Company, the Shares (an “Agency Transaction”) as follows:
(i) The Company may, from time to time, propose to an such Agent the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially similar to Exhibit A hereto (an “Agency Transaction Notice”)) from any of the individuals listed as authorized representatives of the Company on Schedule 1 hereto (each, an “Authorized Company Representative”), such proposal to include: the trading day(s) for the The New York Stock Exchange (the “ExchangeNYSE”) (which may not be a day on which the Exchange NYSE is scheduled to close prior to its regular weekday closing time) on which the Shares are to be sold (each, a “Trading Day”); the maximum number of Shares that the Company wishes to sell in the aggregate and on each Trading Day; and the minimum price at which the Company is willing to sell the Shares (the “Floor Price”).
(ii) If such proposed terms for an Agency Transaction are acceptable to the Agentssuch Agent, it shall promptly confirm the terms by countersigning the Agency Transaction Notice for such Agency Transaction and emailing it to an Authorized Company Representative.
(iii) Subject to the terms and conditions hereof, each such Agent shall use its commercially reasonable efforts to sell all of the Shares designated in, and subject to the terms of, such Agency Transaction Notice. The Agents shall not sell any Share at a price lower than the Floor Price. The Company acknowledges and agrees the Operating Partnership acknowledge and agree with the Agents that (x) there can be no assurance that the any Agents will be successful in selling all or any of such Shares, (y) the Agents shall no Agent will incur no any liability or obligation to the Company or any other person or entity if it does not sell any Shares for any reason and (z) the Agents each Agent shall be under no obligation to purchase any Shares on a principal basis pursuant to this Agreement (except in the case of a Principal Transaction (as defined below) pursuant to this Agreement and the relevant Terms Agreement (as defined below)).
(iv) The Company, acting through an Authorized Company Representative, or an Agent may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend an offering of the SharesShares (including for Shares that have been sold but have not yet settled) pursuant to an Agency Transaction; provided, however, that such suspension shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder prior to the giving of such notice.
(v) If the terms of any Agency Transaction as set forth in an Agency Transaction Notice contemplate that the Shares shall be sold on more than one Trading Day, then the Company and the applicable such Agent shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Trading Days, and such additional terms and conditions shall be binding to the same extent as any other terms contained in the relevant Agency Transaction Notice.
(vi) Each Agent, as sales agent in an Agency Transaction, shall not make any sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (x) by means of ordinary brokers’ transactions that qualify for delivery of the Prospectus in accordance with Rule 153 of the Rules and Regulations and meet the definition of an “at the market offering” under Rule 415(a)(4) of the Rules and Regulations and (y) such other sales of the Shares on behalf of the Company in its capacity as agent of the Company as shall be agreed by the Company and the such Agent in writing.
(vii) The amount of any discount, commission or other compensation to an Agent for sales be paid by the Company to the Agents in connection with the sale of the Shares in an Agency Transaction with respect to which such Agent acts as sales agent hereunder shall be equal to One calculated in accordance with the terms set forth in Schedule 5 hereto and One-half Percent (1.5%) of the gross offering proceeds of the Shares sold under this Agreementapplicable Agency Transaction Notice. The Each Agent shall provide written confirmation to the Company (which may be provided by email to an Authorized Company Representative) following the close of trading on the Exchange NYSE on each Trading Day on which Shares are sold in an Agency Transaction under this Agreement, setting forth (i) the number of Shares sold on such Trading Day, (ii) the gross offering proceeds received from such sales, (iii) the commission payable by the Company to the Agent Agents with respect to such sales and (iv) the net offering proceeds (being the gross offering proceeds for such sales less the commission payable for such sales) (the “Net Offering Proceeds”).
(viii) Settlement for sales of the Shares in an Agency Transaction pursuant to this Agreement shall occur on the third second Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, an “Agency Settlement Date”). On each Agency Settlement Date, the Shares sold through an such Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to such Agent against payment by the Agent to the Company of the Net Offering Proceeds from the sale of such Shares. Settlement for all such Shares shall be effected by free delivery of the Shares by the Company or its transfer agent to such Agent’s or its designee’s account (provided that the such Agent shall have given the Company written notice of such designee prior to the relevant Agency Settlement Date) at The Depository Trust Company or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares Common Shares in good deliverable form, which may include book-entry, in return for payment in same-day funds delivered to the account designated by the Company. If the Company, Company or its transfer agent (if applicable), ) shall default on its obligation to deliver the Shares on any Agency Settlement Date, the Company shall (i) hold the such Agent harmless against any loss, claim, damage, or expense (including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and (ii) pay the such Agent any commission, discount or other compensation to which it would otherwise be entitled absent such default.
(ix) The Company agrees that any offer to sell Shares, any solicitation of an offer to buy Shares, or any sales of Shares shall only be effected by or through only one Agent on any single given day, and in no event by more than one Agent, and the Company shall in no event request that multiple Agents sell Shares on the same day.
Appears in 1 contract
Sources: Equity Distribution Agreement (Investors Real Estate Trust)
Agency Transactions. On the basis of the representations, warranties warranties, and agreements herein contained, but subject to the terms and conditions herein set forth, the Company Partnership and each of the Agents Managers agree that the Company Partnership may issue and sell through an Agenteach Manager, as sales agent for the CompanyPartnership, the Shares Units (an “Agency Transaction”) as follows:
(i) The Company Partnership may, from time to time, propose to an Agent a Manager the terms of an Agency Transaction by means of a telephone call (confirmed promptly by electronic mail in a form substantially similar to Exhibit A hereto (an “Agency Transaction Notice”)) from any of the individuals listed as authorized representatives of the Company Partnership on Schedule 1 2 hereto (each, an “Authorized Company Partnership Representative”), such proposal to include: (A) the trading day(s) for the New York Stock Exchange (the “Exchange”) (which may not be a day on which the Exchange is scheduled to close prior to its regular weekday closing time) on which the Shares Units are to be sold (each, a “Trading Day”); (B) the maximum number of Shares Units (which may be expressed as a percentage of volume) that the Company Partnership wishes to sell in the aggregate and on each Trading Day; and (C) the minimum price at which the Company Partnership is willing to sell the Shares Units (the “Floor Price”); and (D) the compensation payable to such Manager for such sales pursuant to Section 1(a)(vii). Such Agency Transaction Notice may be amended intra-day by the Authorized Partnership Representative as confirmed in writing (which may be by electronic mail) between the Manager and such representative.
(ii) If such proposed terms for an Agency Transaction are acceptable to the AgentsManager, it shall promptly confirm the terms by countersigning an acknowledgement included in a return electronic mail message referring to the Agency Transaction Notice for such Agency Transaction and emailing it that is delivered to an Authorized Company Partnership Representative.
(iii) Subject to the terms and conditions hereof, each Agent Manager shall use its commercially reasonable efforts to sell all of the Shares Units designated in, and subject to the terms of, such Agency Transaction Notice. The Agents No Manager shall not sell any Share Unit at a price lower than the Floor Price. The Company Partnership acknowledges and agrees with the Agents Managers that (xA) there can be no assurance that the Agents any Manager will be successful in selling all or any of such SharesUnits, (yB) the Agents no Manager shall incur no any liability or obligation to the Company Partnership or any other person or entity if it does not sell any Shares Units for any reason other than a failure by such Manager to use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell such Units as required under this Agreement, and (zC) the Agents no Manager shall be under no any obligation to purchase any Shares Units on a principal basis pursuant to this Agreement (except in the case of a Principal Transaction (as defined below) pursuant to this Agreement and the relevant Terms Agreement (as defined belowAgreement). For the purposes of this Agreement, the “gross sales price” of the Units sold under this Section 1(a) shall be equal to the price at which the Partnership’s Common Units are sold by a Manager under this Section 1(a).
(iv) The CompanyPartnership, acting through an Authorized Company Partnership Representative, or an Agent any Manager may, upon notice to the other party hereto by telephone (confirmed promptly by electronic mail), suspend an or terminate the offering of the SharesUnits with respect to which the Manager is acting as sales agent; provided, however, that such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares Units sold hereunder prior to the giving of such notice.
(v) If the terms of any Agency Transaction as set forth in an Agency Transaction Notice contemplate that the Shares Units shall be sold on more than one Trading Day, then the Company Partnership and the applicable Agent Manager shall mutually agree to such additional terms and conditions as they deem necessary in respect of such multiple Trading Days, and such additional terms and conditions shall be binding to the same extent as any other terms contained in the relevant Agency Transaction Notice.
(vi) Each AgentA Manager, as sales agent in an Agency Transaction, shall not make any sales of the Shares Units on behalf of the CompanyPartnership, pursuant to this Agreement, other than (xA) by means of ordinary brokers’ transactions that qualify for delivery of the Prospectus (as defined below) in accordance with Rule 153 of the Rules and Regulations and meet the definition of an “at the market offering” under Rule 415(a)(4) of the Rules and Regulations and (yB) such other sales of the Shares Units on behalf of the Company Partnership in its capacity as agent of the Company Partnership as shall be agreed by the Company Partnership and the Agent Manager in writingwriting (which may be by email).
(vii) The compensation to an Agent a Manager for sales of the Shares Units in an Agency Transaction with respect to which such Agent Manager acts as sales agent hereunder shall be equal up to One and One-half Percent (1.5%) 2% of the gross offering proceeds of the Shares Units sold under pursuant to this Agreement. The Agent Manager shall provide written confirmation to the Company Partnership and to the transfer agent for the Common Units, as directed by the Partnership (which may be provided by email to an Authorized Company Representative) Partnership Representative and to such transfer agent), following the close of trading on the Exchange on each Trading Day on which Shares Units are sold in an Agency Transaction under this Agreement, setting forth (iA) the number of Shares Units sold on such Trading Day, Day and (iiB) the gross offering proceeds received from such sales.
(viii) Settlement for sales of the Units in an Agency Transaction pursuant to this Agreement shall occur (A) prior to September 5, 2017, on the third business day that is also a Trading Day following the trade date on which such sales are made and (iiiB) on and after September 5, 2017, on the commission payable second business day that is also a Trading Day following the trade date on which such sales were made, in either case, unless another date shall be agreed to in writing by the Company Partnership and the applicable Manager (each such day, an “Agency Settlement Date”). On each Agency Settlement Date, the Units sold through a Manager in Agency Transactions for settlement on such date shall be issued and delivered by the Partnership to the Agent with respect Manager against payment by the Manager to such sales and (iv) the Partnership of the net offering proceeds (being the gross offering proceeds for such sales less the commission payable for such sales) (the “Net Offering Proceeds”).
(viii) Settlement for sales of the Shares in an Agency Transaction pursuant to this Agreement shall occur on the third Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each such day, an “Agency Settlement Date”). On each Agency Settlement Date, the Shares sold through an Agent in Agency Transactions for settlement on such date shall be issued and delivered by the Company to such Agent against payment by the Agent to the Company of the Net Offering Proceeds from the sale of such SharesUnits. Settlement for all such Shares Units shall be effected by free delivery of the Shares Units by the Company Partnership or its transfer agent to such Agentthe Manager’s or its designee’s account (provided that the Agent Manager shall have given the Company Partnership written notice of such designee prior to the relevant Agency Settlement Date) at The Depository Trust Company or by such other means of delivery as may be mutually agreed upon by the parties hereto, which in all cases shall be freely tradable, transferable, registered shares in good deliverable form, in return for payment in same-day funds delivered to the account designated by the CompanyPartnership. If the CompanyPartnership, or its transfer agent (if applicable), shall default on its obligation to deliver the Shares Units on any Agency Settlement Date, the Company Partnership shall (ix) hold the Agent Manager harmless against any loss, claim, damage, or expense (including, without limitation, reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company Partnership and (iiy) pay the Agent Manager any commission, discount discount, or other compensation to which it would otherwise be entitled absent such default. If the Manager breaches this Agreement by failing to deliver the Net Offering Proceeds to the Partnership on any Agency Settlement Date for the Units delivered by the Partnership, the Manager will pay the Partnership interest based on the effective overnight federal funds rate on such unpaid amount less any compensation due to the Manager.
Appears in 1 contract
Sources: Equity Distribution Agreement (EnLink Midstream Partners, LP)